Why Will Aung San Suu Kyi Personally Defend Myanmar Against Genocide Claims?

 In Singapore, GDI, Defense

On November 20, Myanmar’s de facto head of state, State Counselor Aung San Suu Kyi, announced that she would lead the defense of her coun­try at the International Court of Justice (ICJ) in The Hague, where Myanmar stands accused by The Gambia of vio­lat­ing the Genocide Convention 1948.

The small West African coun­try, which itself emerged out of a 23-year long auto­crat­ic regime in 2017, filed the case on November 11 on behalf of the Organization of Islamic Cooperation (OIC). It has accused Myanmar of car­ry­ing out “geno­ci­dal vio­lence” against the Rohingya com­mu­ni­ty by means of mass murder, rape and other forms of sexual vio­lence, and destruc­tion of Rohingya vil­lages.

Suu Kyi’s deci­sion to appear at The Hague star­tled many within and out­side Myanmar. After all, the very thought of a Nobel peace prize winner defend­ing charges of geno­cide at an inter­na­tion­al court is jar­ring. Back home, while her announce­ment was mostly well received by her loyal sup­port­ers, many expressed con­cerns about the Lady appear­ing in The Hague to defend the military’s actions. For those wor­ried, there is a real pos­si­bil­i­ty that the endeav­or might fall back on her heav­i­ly, fur­ther dam­ag­ing her already-dented inter­na­tion­al rep­u­ta­tion.

But this is not the first time that Suu Kyi or her gov­ern­ment, which came to power through large­ly free and fair elec­tions in 2015, has defend­ed the Tatmadaw’s con­tro­ver­sial cam­paign against the Rohingya. Since the begin­ning of the con­tro­ver­sial “clear­ance oper­a­tions” by the Tatmadaw (Myanmar’s mil­i­tary) in October 2016 after an attack on border out­posts by Rohingya assailants in north­ern Rakhine state, it has staunch­ly defend­ed the actions of the secu­ri­ty forces as nec­es­sary action against “ter­ror­ists.” Suu Kyi has firmly argued at var­i­ous inter­na­tion­al fora that the inter­na­tion­al com­mu­ni­ty doesn’t under­stand the “real­i­ty” of the sit­u­a­tion in Rakhine state.

Her gov­ern­ment has also per­sis­tent­ly dis­missed reports crit­i­cal of the military’s con­duct against the Rohingya from the inter­na­tion­al media and the United Nations as either fab­ri­cat­ed, mis­lead­ing, or unhelp­ful. The first such dis­missal came direct­ly from Suu Kyi, who is also Myanmar’s for­eign min­is­ter, in May 2017, after the UN Human Rights Council (UNHRC) had passed a res­o­lu­tion three months ear­li­er to inves­ti­gate the alleged crimes. Subsequently, the gov­ern­ment reject­ed a com­pre­hen­sive report released by a UN International Independent Fact-Finding Mission (FFM) in August 2018. That same month, at a lec­ture in Singapore, Suu Kyi per­son­al­ly defend­ed the military’s actions against the Rohingya, besides also saying that her government’s rela­tion­ship with the Tatmadaw was “not so bad.”

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Exactly a year later, her gov­ern­ment dis­missed anoth­er report pub­lished by the FFM detail­ing the intri­cate rela­tion­ship between the Tatmadaw’s shad­owy busi­ness inter­ests and the ongo­ing ethnic armed con­flict.

“We regard the report as an action intend­ed to harm the inter­ests of Myanmar and its people, and we do not believe that such an action con­tributes in any way to the res­o­lu­tion of the chal­lenges that the nation faces in Rakhine State,” the gov­ern­ment said.

Suu Kyi’s gov­ern­ment has also cat­e­gor­i­cal­ly reject­ed the juris­dic­tion of the International Criminal Court (ICC), which autho­rized full-fledged inves­ti­ga­tions into the alleged crimes ear­li­er this month, over Myanmar. Since Myanmar is not a state party to the Rome Statute (the found­ing char­ter of the ICC), Prosecutors at the Hague-based ICC are trying to indict Tatmadaw gen­er­als and other per­pe­tra­tors through Bangladesh, which is a state party.

Suu Kyi her­self has never said a word that, in any manner, con­tra­dicts the offi­cial posi­tion of the Tatmadaw on the Rohingya crisis, which is that it is bat­tling a ter­ror­ist upsurge in Rakhine state. The clos­est thing to a crit­i­cal state­ment that she has given on the matter so far is saying, at a World Economic Forum meet­ing in Hanoi, Vietnam in September 2018, that “with hind­sight, the sit­u­a­tion could have been han­dled better.” Evidently, the Lady sees the whole issue as a man­age­ment and public rela­tions crisis, rather than one that is essen­tial­ly polit­i­cal in nature.

Her latest deci­sion to appear at the ICJ must also be seen in the con­text of Myanmar’s domes­tic pol­i­tics, which stands at a crit­i­cal point at the moment.

First, Myanmar will have a gen­er­al elec­tion next year. Needless to say, Suu Kyi’s party, the National League for Democracy (NLD), is the prime con­tender. While it remains pop­u­lar amongst the major­i­ty Bamar con­stituen­cies, the NLD, which emerged from the heart of Myanmar’s pro-democ­ra­cy strug­gle, is fast losing trac­tion in other ethnic quar­ters. The results of last year’s by-elec­tion, in which the NLD lost sev­er­al of the seats that it ear­li­er held, was an indi­ca­tion of the party’s dip­ping for­tunes beyond the Bamar-dom­i­nat­ed blocs of cen­tral Myanmar. This could pose a chal­lenge for the NLD next year.

In addi­tion, a con­flu­ence of other fac­tors has dented the party’s image even amongst its loyal con­stituen­cies. The NLD is bat­tered by the emer­gence of new polit­i­cal par­ties, slug­gish eco­nom­ic growth, the slow pace of the peace process, a spike in ethnic con­flict in north­ern and west­ern areas, a sharp rise in defama­tion cases against civil soci­ety mem­bers and jour­nal­ists, rising dis­con­tent against mega projects under China’s Belt and Road Initiative (BRI), sharp global rhetoric against the coun­try over the Rohingya crisis, fresh sanc­tions by the European Union (EU), and stunt­ed progress on ear­li­er cam­paign promis­es.

It is in this con­text that Suu Kyi’s deci­sion to appear at the ICJ must be seen. Defending Myanmar before a top inter­na­tion­al court could be an effec­tive image-cor­rec­tion exer­cise and could help offset any com­plaints that the NLD’s loyal sup­port­ers might have before they walk into the polling booth next year November. In fact, doing so could even reclaim lost voters, includ­ing from minor­i­ty ethnic blocs, and per­suade fence-sit­ters to vote for the NLD over others. Sure, it is a risky gamble, but one that the Lady is will­ing to take to secure not just her party’s elec­toral future, but also her own polit­i­cal ambi­tions. There is little doubt that she sees her­self as the right­ful heir to the legacy of her leg­endary father, General Aung San, and she wants to go down in Myanmar’s his­to­ry as a leader whose unflinch­ing patri­o­tism redeemed the coun­try when it mat­tered the most.

Second, Myanmar is in the midst of a volatile polit­i­cal moment cur­rent­ly that could unset­tle the del­i­cate rela­tion­ship between the civil­ian gov­ern­ment and the pow­er­ful mil­i­tary. The NLD, along­side other civil­ian par­ties, has ini­ti­at­ed par­lia­men­tary pro­ceed­ings to amend the 2008 mil­i­tary-draft­ed con­sti­tu­tion with the aim of grad­u­al­ly reduc­ing the Tatmadaw’s role in nation­al pol­i­tics. Needless to say, the Tatmadaw, which ruled the coun­try with an iron fist for six decades and still enjoys a robust 25 per­cent reserved seat share in the union and state par­lia­ments, is highly con­cerned.

Earlier this year, the mil­i­tary law­mak­ers in the union par­lia­ment, in a rare spec­ta­cle, openly protest­ed against the amend­ment process by stand­ing up silent­ly in their seats. Later in July, Tatmadaw par­lia­men­tar­i­ans with­drew from a pro­posed debate on the amend­ments, making their dis­con­tent doubly clear. But, for NLD, which came to power in 2015 on the promise of amend­ing the con­sti­tu­tion, seeing through at least a part of the process before next year’s elec­tion is impor­tant.

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More impor­tant­ly, the NLD seeks to strike down the spe­cif­ic con­sti­tu­tion­al pro­vi­sion that bars Suu Kyi — whose late hus­band and chil­dren are British cit­i­zens — from becom­ing the country’s pres­i­dent.

The tricky part, how­ev­er, is that by virtue of the con­sti­tu­tion itself, the mil­i­tary has an effec­tive veto over the amend­ment process. Thus, Suu Kyi needs the sup­port of the uni­formed par­lia­men­tar­i­ans to real­ize her polit­i­cal agenda. Defending Myanmar at the ICJ could give her the nec­es­sary lever­age over the mil­i­tary to secure a break­through bar­gain. The Tatmadaw lead­er­ship has already wel­comed the deci­sion and said that it is coop­er­at­ing with the gov­ern­ment through a joint team of legal experts. While the ICJ case isn’t specif­i­cal­ly against the mil­i­tary, the Tatmadaw seems to believe that Suu Kyi’s per­son­al defense could fix some of the damage done to its own image too. In return, the gen­er­als might be will­ing to dole out some polit­i­cal con­ces­sions on the con­sti­tu­tion­al amend­ment front. Moreover, the much-touted civil-mil­i­tary coop­er­a­tion on the issue serves well to sta­bi­lize public per­cep­tions about Myanmar’s tot­ter­ing democ­ra­cy. Only time will tell how this pans out.

One observ­er has writ­ten that the deci­sion by Suu Kyi to appear in The Hague, taken in con­sul­ta­tion with the Tatmadaw, shows “an unchar­ac­ter­is­tic acknowl­edg­ment of inter­na­tion­al law and the juris­dic­tion of for­eign ‘inter­ests’ from the noto­ri­ous­ly iso­la­tion­ist mil­i­tary estab­lish­ment” and that “she is being set up as the patsy for the geno­cide — by the very same people who orga­nized it and car­ried it out.” But this is a naive assess­ment that assumes that Myanmar has a straight­for­ward choice to reject the ICJ’s juris­dic­tion as a state party to the Genocide Convention. It also assumes that the mil­i­tary is still iso­la­tion­ist — it has active­ly opened up to the world since the late 2010s in sync with the demo­c­ra­t­ic tran­si­tion process.

Finally, it is unwise to assume that Suu Kyi is a mere “pawn in the game.” As shown above, she has played a much more active role in sus­tain­ing and defend­ing the cul­ture of impuni­ty that Myanmar and its mil­i­tary have metic­u­lous­ly fos­tered over the years. It remains to be seen if the ICJ man­ages to smash that.

Angshuman Choudhury is a Senior Researcher at the Southeast Asia Research Programme, Institute of Peace and Conflict Studies, New Delhi, and cur­rent­ly, Visiting Fellow, German Institute for International and Security Affairs, Berlin.

Source: The Diplomat

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