By Angshuman Choudhury
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.”
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.
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.
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