Aung San Suu Kyi at the International Court of Justice the Gambia’S Genocide Case Against Myanmar and Its Domestic Ramifications Angshuman Choudhury and Felix Heiduk

NO. 51 DECEMBER 2019 Introduction

Aung San Suu Kyi at the International Court of Justice The Gambia’s Genocide Case against Myanmar and Its Domestic Ramifications Angshuman Choudhury and Felix Heiduk

The recent decision by The Gambia to file a genocide case against Myanmar at the International Court of Justice (ICJ) has directed international attention again towards Rakhine State in western Myanmar, where the Rohingya people have faced discrimination and persecution for decades. What took many observers by surprise was the announcement by State Counsellor Aung San Suu Kyi that she would be travelling to The Hague to personally “defend the national interest” and thus, by extension, the actions of her former nemesis. After all, she had enjoyed broad international support precisely for her role as leader of the National League for Democracy (NLD) and her democratic, non-violent opposition against the military dictatorship. These develop- ments, we argue, must be understood against a wider rollback of the democratisation process. The rollback is at least partly being orchestrated by Aung San Suu Kyi and the NLD, and it could bode ill especially for the ethnic minorities in the country.

The Gambia, on behalf of the Organisation Myanmar, have claimed that military opera- of Islamic Cooperation, has filed a case at tions took place only in direct response the ICJ accusing Myanmar of committing to terrorist attacks by an armed group, the genocide against the Rohingya minority. Arakan Rohingya Salvation Army (ARSA), The case asks the ICJ to urgently order and that they were fully proportionate measures to stop Myanmar’s genocidal con- to the security threat posed. The United duct immediately. The Rohingya, a major- Nations (UN), however, has labelled the ity-Muslim ethnic group regarded by the operations as ethnic cleansing campaigns government and the army as “Bengali”, or involving mass rape, widespread killings of illegal immigrants from Bangladesh, have civilians, torture, and the frequent burning long faced discrimination and persecution. of Rohingya villages. Furthermore, a UN Recently, military-led campaigns against Fact-Finding Mission last year labelled the Rohingya communities in October 2016 Tatmadaw’s (armed forces) anti-Rohingya and August 2017 had caused nearly 800,000 violence as “genocidal”. Under intense Rohingya to flee the country. The armed international scrutiny, the government has, forces, as well as the civilian government of in principle, agreed in 2018 to allow the

return of Rohingya refugees to improve its mar has no other option but to accept the tainted international image. However, two Court’s jurisdiction. Furthermore, Myanmar attempts to repatriate at least some of the had made two reservations while ratifying estimated more than one million Rohingya the Convention in 1956, but none in Article refugees have failed. The Rohingya refugees IX, which The Gambia has based its case on. refused to participate in the repatriation However, the government has noted that efforts for fears over their physical safety. the case (alongside the International Crimi- Additionally, a recent think-tank report has nal Court and Argentine cases) has “severely found that Myanmar has made only mini- damaged” Myanmar’s international image. mal preparations to facilitate the return It has also argued that Myanmar is as reso- of Rohingyas to their ancestral villages in lute about preventing genocide as it was Rakhine in terms of food, security, or shel- when signing the 1948 Convention. The gov- ter. More so, a UN Human Rights Council ernment has formed a “Special Unit on In- report released a few weeks ago indicates ternational Criminal Justice” and it is clear that the situation of the Rohingya who that Naypyitaw is taking the case seriously have remained in Myanmar is as dire as and hopes to put up a watertight defence ever. The report details continuing abuses before the Court. Furthermore, the State by the state security forces, prevailing im- Counsellor has been appointed as “the agent” punity of those involved in human rights of Myanmar in her capacity as the Foreign violations, and concludes that the remain- Minister, effectively putting her as the lead ing Rohingya in Myanmar are still at “seri- defender. Suu Kyi’s appointment is being ous risk of genocide” as the government widely seen as a valiant attempt to defend “continues to harbor genocidal intent”. the dignity of Myanmar before the inter- Thus, various governments and international national community, with members of the organisations have approved of the decision mainstream political community and civil by The Gambia to file a case at the ICJ. society lauding her leadership. The military’s response has been similar. Despite rejecting all accusations of geno- Reactions Inside the Country cidal violence made by the international community so far, it has acknowledged the So far, the domestic political community ICJ case and announced that it would fully and civil society in Myanmar have staunchly cooperate with the government on the opposed international interventions on the issue. The military’s position of acceptance Rohingya crisis. The dominant narrative also comes from unavoidable boundaries emerging from the ruling party and the Tat- of international law. It does not wish to be madaw, as also reflected in popular narra- seen as being blatantly dismissive of the in- tives, is that outside actors do not under- ternational legal system, but it has projected stand the “reality” on the ground. There is the case as a chance to tell the “reality” – also a pushback against external investiga- or its own version – of the Rakhine story tive mechanisms based on the belief that to the international community. It main- the international community has ignored tains that the Rohingya are “illegal immi- the terrorist violence unleashed by ARSA grants” from Bangladesh and are respon- and focussed disproportionately on the Tat- sible for the violence in northern Rakhine. madaw’s actions. However, the reaction to Further, the Tatmadaw is letting the civilian the ICJ case has been somewhat different. government take the lead on the case. The civilian government has acknowl- The reactions of the Ethnic Armed edged The Gambia’s case at the ICJ as valid, Organisations (EAOs) towards The Gambia’s while flagging it as “an issue of high national case have been mixed. The United Wa State interest affecting all nationals of Myan- Army (UWSA), the National Democratic mar”. As a UN Member State and State Party Alliance Army (NDAA), and the Shan State to the Genocide Convention of 1948, Myan- Progressive Party have backed the govern-

SWP Comment 51 December 2019

2 ment. All three are non-signatories to the decision to lead the defence at the ICJ can Nationwide Ceasefire Agreement (NCA). rejuvenate the NLD’s political fortunes The 10 NCA signatories have not announced while boosting her own image before the any uniform position yet. However, a Karen domestic audience. By framing it as a National Union central executive commit- “national interest” issue, she has already tee member told the media that he sup- restricted the space for political opponents, ports the government and appealed to other including from smaller ethnic parties, ethnic minorities to do so. Separately, a to criticise her. Thus, she now stands to section of the Karen diaspora, under the emerge as a unifying figure. Consequently, banner of the Worldwide Karen Organisa- the NLD is not just retaining its existing tion, has declared its support for the ICJ voter base, but it will also end up expand- case. Furthermore, the Arakan Army, the ing it before next year’s elections. Ta’ang National Liberation Army, and the Second, by defending charges of geno- Myanmar National Democratic Alliance cide that are essentially directed at the Tat- Army have supported the ICJ case. They madaw, Suu Kyi stands to gain some politi- are part of the Northern Alliance, a group- cal leverage over the military. This is particu- ing of non-signatory EAOs that is currently larly crucial in light of the ongoing process at war with the Tatmadaw. The ICJ case of constitutional amendment, which the could discredit the Tatmadaw, which is NLD initiated last year and wants to push exactly what these warring EAOs seek. How- through before the 2020 elections. Amend- ever, groups such as the UWSA and the ing the military-drafted 2008 constitution NDAA have control over autonomous en- was one of the NLD’s key election promises claves and are not at war with the Tatma- in 2015. However, for the military, which daw, which explains their support for the derives all of its political authority from the government. constitution, the process is an existential threat. This has sharpened tensions be- tween both camps, casting a shadow over Why Aung San Suu Kyii Is the stability of Myanmar’s nascent democ- Going to The Hague racy. By shielding the military at the ICJ, Suu Kyi might be able to convince the Tat- This is not the first time that Suu Kyi is madaw to relax their parliamentary vetoes defending the Tatmadaw’s controversial and allow some of the amendments to pass actions against the Rohingya at an inter- in the parliament. For the State Counsellor, national forum. She has done so many the provision that bars her from becoming times since the first wave of violence in the union’s President because of her British northern Rakhine erupted in October 2016. family is of particular importance. Most im- By personally going to The Hague to portantly, with the military publicly declar- defend Myanmar, Suu Kyi will be able to ing its support for the government, the accrue significant political gains at home in whole case could help stabilise civil-mili- two distinct aspects. tary relations in Myanmar, both in practice First, national elections will be held next and popular perception. year, with Suu Kyi’s party, the NLD, defending its ruling position. Although the NLD remains popular in majority Burman con- Outlook: Domestic Ramifications stituencies, it has lost traction in minority ethnic areas due to various factors, such as After the NLD landslide victory in 2015, the emergence of new parties, renewed which made Suu Kyi the de facto head of armed conflict, and clampdowns on ethnic the new, democratically elected govern- activists. Even among its majority Burman ment, Western observers expected democ- constituencies in central Myanmar, the NLD racy would at last prevail. However, demo- faces headwinds. In this context, Suu Kyi’s cratic reforms have come much more slowly

SWP Comment 51 December 2019

3 than expected. This is in part due to the few predict anything but an outright elec- 2008 military-drafted constitution, which toral victory of the NLD in 2020. safeguards most of the armed forces’ wide- That being said, the ICJ case might turn ranging prerogatives. It enables the military out to be a double-edged sword. On the one to appoint the ministers of defence, home hand, it has led to intensified scrutiny on affairs, and border affairs. It also enables the atrocities committed by the security the military to assume power over all forces in Rakhine, and by extension on branches of the government in case of a those committed against other ethnic state of emergency. It furthermore reserves minorities. It will thereby help those who 25 per cent of the seats in both houses of aim to further internationalise the issue. © Stiftung Wissenschaft parliament for the security forces and stipu- On the other hand, however, there is little und Politik, 2019 lates that amending the Constitution re- reason to assume the case will alter the All rights reserved quires the approval of more than 75 per government’s stance on the Rohingya issue cent of all lawmakers – thereby effectively or on other ethnic minorities. With the This Comment reflects granting the military veto powers over any 2020 elections looming ever larger on the the authors’ views. constitutional changes. As it stands, the horizon, Suu Kyi will likely face off against The online version of civilian government has almost no leverage the current army commander, Min Aung this publication contains over the armed forces. However, it is not Hlaing, and military-backed parties. One functioning links to other just the armed forces that are to blame for can infer from her recent rhetoric that she SWP texts and other relevant the slow pace of democratic reforms. De- will try to appear as tough and nationalist sources. spite holding a majority of seats in parlia- as possible on the campaign trail, while at SWP Comments are subject ment, the NLD government has nonetheless the same time refraining from incensing to internal peer review, fact- struggled to reform the country over the the military. Her announcement to “defend checking and copy-editing. last four years. Failure to prevent, or at least the national interest” in The Hague has not For further information on speak up against, the mass atrocities against only further boosted her image domestically, our quality control pro- the Rohingya has internationally been the but also indicates a further hardening of cedures, please visit the SWP website: https://www.swp- most visible indicator of this. Yet, Suu Kyi’s her stance on minority rights. What it there- berlin.org/en/about-swp/ autocratic leadership style, her diffidence fore highlights is not so much salience of quality-management-for- towards upcoming political talent, and the the 2020 elections for her supporters, but swp-publications/ lack of intra-party democracy in the NLD, also the alienation of the ethnic minorities, as well as the failure to decentralise Myan- who make up more than 30 per cent of the SWP mar’s polities and politics, have also been total population. The increasing alienation Stiftung Wissenschaft und Politik widely criticised. Military-era laws were of minority groups is most visible in Rakhine German Institute for used by the NLD government to stifle public State, where both the ethnic Rohingya and International and expressions of dissent and to silence the ethnic Rakhine – the latter make up the Security Affairs media from reporting stories critical of the majority of the population in the state – armed forces and the government. In addi- feel disillusioned about the current state of Ludwigkirchplatz 3–4 10719 Berlin tion, the peace process with ethnic armed affairs. The same goes for the Karen in the Telephone +49 30 880 07-0 groups has stalled and further conflict has south-east and the Kachin in the north. If Fax +49 30 880 07-100 broken out, business confidence remains Suu Kyi and her rivals go on a nationalist www.swp-berlin.org low, and for many Burmese, living con- overdrive as the ICJ case drags on, national [email protected] ditions have yet to improve. In recent reconciliation and Myanmar’s decentralisa-

ISSN 1861-1761 by-elections, the NLD had a relatively poor tion might be at risk. However, if the Suu doi: 10.18449/2019C51 showing, losing seats to the military-backed Kyi government decides to reach out to the Union Solidarity and Development Party minorities so as to fix Myanmar’s inter- and to ethnic parties. Yet, as Suu Kyi re- national image, then the whole case might mains hugely popular among the ethnic strengthen the country’s emergent democ- Burman majority of the population, very racy.

Angshuman Choudhury is a GIBSA Visiting Fellow at SWP and a Senior Researcher at the Institute of Peace and Conflict Studies. Dr Felix Heiduk is a Senior Associate in the Asia Division at SWP.

SWP Comment 51 December 2019