While the ICJ ruling pulled up
Myanmar’s de facto head, Aung San Suu Kyi, over the genocide of Rohingyas, the
fact is that she can’t antagonise the army or the conservative Buddhist
population
By Col R Hariharan |Analysis| India Legal | February 2, 2020
Myanmar’s de facto head
of state and State Counsellor Aung San Suu Kyi is facing yet another challenge.
Already grappling with the complexities of constitutional democracy designed by
the Tatmadaw (army), she now has to confront a recent order of the
International Court of Justice on the Rohingya genocide issue.
On January 20, the 17-member ICJ panel imposed “provisional
measures” on Myanmar, ordering it “to take all measures within its power” to
prevent the killing of Rohingya Muslims remaining in Rakhine state under the
1948 Genocide Convention. The Court also asked Myanmar to preserve evidence of
Rohingya persecution. It also ordered it to submit a report to the ICJ within
four months, with additional reports every six months “until a final decision
on the case is rendered by the Court”.
The ICJ’s order is an interim one to meet Gambia’s request for
provisional measures “to stop genocidal conduct immediately” against about
6,00,000 Rohingyas remaining in Myanmar.
Myanmar is one of the 150 countries which ratified the
Convention on the Prevention and Punishment of the Crime of Genocide which came
into force on January 12, 1951. As a signatory to the Convention, it is
obligatory for Myanmar to take action, in letter and spirit, against genocide
both in times of war and peace.
Article II of the Genocide Convention lists killing, causing
serious bodily or mental harm or deliberately inflicting conditions of life
calculated to bring serious bodily or mental harm by the military or “any
irregular armed units” as falling within the scope of the Convention.
Gambia’s case before the ICJ pertains to the military excesses
committed during military operations launched in the wake of Arakan Rohingya
Salvation Army (ARSA) insurgents’ attacks on police posts in 2017. The army’s
savage reprisals unleashed on the Rohingya population resulted in 7,00,000 of
them fleeing the country to seek refuge in Bangladesh.
The ICJ rulings are final and there is no provision for appeal.
Although the Court has no mechanism to enforce its orders, Myanmar is obliged
to implement it under international law. Many human rights organisations and
Rohingya expatriate bodies have hailed the ICJ ruling as a vindication of their
allegations of genocide committed against the Rohingyas.
As the BBC put it, Suu Kyi’s appearance before the ICJ hearing
in her capacity as foreign minister in December 2019 to defend the Myanmar
army’s conduct in 2017 “obliterated any remnants of Aung San Suu Kyi’s
international reputation”. In any case, her global image as a “human rights
icon” for her unrelenting fight for restoring democracy, took a severe beating
when the military carried out its no-holds-barred operations against the
Rohingya insurgents.
Speaking at the ICJ, she said the Myanmar defence services
“responded” to “an internal conflict started by coordinated and comprehensive
armed attacks” in western Rakhine state in August 2017, leading to the exodus
of Muslims.
On the eve of the ICJ
ruling, Suu Kyi wrote in an op-ed piece in Financial Times: “An
informed assessment of Myanmar’s ability to address the issue of violations in
Rakhine can only be made if adequate time is given for domestic justice to run
its course.” She called upon the international community to respect the
country’s judicial system. The war crimes allegedly committed by troops in 2017
will be prosecuted through “our military justice system”. “We need to respect
the integrity of these proceedings and refrain from the unreasonable demands
that Myanmar’s criminal justice system complete investigations in a third of
the time routinely granted to international processes,” she wrote.
The state counsellor said Myanmar was a victim of
“unsubstantiated narratives” by the international community, apparently
referring to reports by international human rights watchdogs like Amnesty
International and Human Rights Watch. She accused them of condemning Myanmar
“based on unproven statements without due process of criminal investigation”.
The allegations against Myanmar “all rely on a fact-finding mission by the UN
Human Rights Council. This is precariously dependent on statements by refugees
in camps in Bangladesh”.
She wrote that a fair reading of the report of the Independent
Commission of Enquiry (ICOE) on January 20 “would show that this is a real risk
in the current international proceedings on events in Rakhine”.
The four-member ICOE was constituted in July 2018 with
Ambassador Rosario Manalo, former foreign minister of Philippines, as chairman.
It was tasked to investigate allegations of human rights violations and related
issues following the terrorist attacks by the ARSA in Rakhine state.
The operative part of the ICOE report said that “war crimes,
serious human rights violations and violations of domestic law took place
during the security operations between August 25 and September 5, 2017.
Although serious crimes and violations were committed by multiple actors, there
are reasonable grounds to believe that members of Myanmar’s security forces
were involved”. It further added, “the killing of innocent villagers and
destruction of their homes were committed by some members of Myanmar’s security
forces through disproportionate use of force during internal armed conflict”.
However, the ICOE held there was “insufficient evidence to
argue, much less conclude that the crimes committed were undertaken with the
intent to destroy, in whole or in part, a national, ethnical, racial religious
group, or with any other requisite mental state for the international crime of
genocide”.
Even if Suu Kyi wants to bring to book troops involved in
serious crimes against the Rohingyas, there are constitutional limitations. The
2008 constitution legitimised the military’s Presence in the legislature and
governance. One-fourth of the seats in Parliament are reserved for the army as
also three key ministries—home, defence and border affairs. The army agreed to
the creation of an extra-constitutional position of state counsellor (de facto
head of state) to accommodate Suu Kyi at the top of the state structure as she
was not eligible to be elected president because of her marriage to a
foreigner.
So her government seems to have adopted tokenism as the best
option. For instance, seven soldiers jailed for 10 years for killing 10 Muslim
men and boys in the village of Inn Din were released last November after
serving only a year of imprisonment. This was in sharp contrast to two Myanmar
journalists who exposed the killings—they spent a longer time in jail.
While western opinion-makers castigated her for defending the
“genocidal” actions of the army, it endeared her at home to the armed forces
and the conservative Therawada Buddhist population, which has shown strong
anti-Muslim and xenophobic sentiments.
During the 2010-15 rule of the pro-army Union Solidarity and
Development Party, the Thein Sein government restored media freedom and
released most of the political prisoners and constituted the State Human Rights
Commission. However, it also saw some of the worst anti-Muslim riots by
Buddhist extremist elements, particularly against the Rohingyas in Rakhine
state, under the benign watch of law-enforcing agencies controlled by the army.
There were as many as five anti-Muslim riots in which 282 people, mostly
Rohingya men, women and children, were killed.
The Thein Sein government disenfranchised Muslims prior to the
2015 general election. Although the NLD led by Suu Kyi had enjoyed the support
of Muslims, it maintained a studied silence on the issue and did not field any
Muslim candidate when it won a thumping majority in the parliamentary poll in
2015. This showed that Suu Kyi, despite her nationwide popularity, is
extremely cautious in handling the Rohingya issue for fear of backlash from the
Buddhist population. With a general election due at the end of the year, Suu
Kyi is unlikely to embark on any radical action on the Rohingya issue lest it
affects the NLD’s poll prospects. In the long term, the Rohingyas’ plight
cannot be ameliorated unless their status as citizens of Myanmar is recognised.
This would require amending the Burma Citizenship, Law, 1982, to include them
among the officially recognised indigenous ethnic groups. As the present list
recognises only eight other ethnic groups, a million-plus Rohingyas have been
rendered stateless. Unless they are recognised as citizens, it will be
difficult to absorb them in the national mainstream.
Both the EU and the US, who generally spearhead human rights
campaigns in international forums, have reacted cautiously to the ICJ ruling,
perhaps because they understand the constraints under which Suu Kyi is
functioning.
The Office of the UN Special Adviser on the Prevention of
Genocide (OSAPG) uses an eight-category analysis framework to determine whether
there may be a risk of genocide in a given situation. If Myanmar’s justice
system strictly goes by OSAPG norms, probably many members of the Tatmadaw will
be found guilty of committing genocide against the Rohingyas.
But unless the whole nation wills itself to do justice, it will
be a Himalay-an task for Aung San Suu Kyi, despite her national popularity and
acceptance by the Tatmadaw, to bring the guilty to book in the near future. So
the Roh-ingyas run the risk of joining the long list of victims of unpunished
genocides across the world.
However, internationalisation of the Rohingya issue will,
hopefully, hasten constitutional reform in Myanmar to free democracy from
Tatmadaw fetters. It could also amend citizenship and electoral laws so that
stateless persons and minorities enjoy equal rights as citizens of Myanmar.
The
writer is a military intelligence specialist on South Asia, associated with the
Chennai Centre for China Studies and the International Law and Strategic
Studies Institute. E-mail: haridirect@gmail.com
Blog: https://col.hariharan.info
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