Aung San Suu Kyi will defend Myanmar’s genocide case at the Hague. The explanations for her seemingly foolhardy decision can be found in Myanmar’s domestic political climate.
In the 1920s, Polish law student Raphael Lemkin read about the massacre of Armenians at the hands of the Ottoman government. The incident struck a chord with the young scholar. For him, it exposed a glaring hole in international law.
“Why was killing a million people a less serious crime than killing an individual?”, he lamented. There was no legal definition relating to the crime of genocide. No law prevented states or individuals carrying out acts of violence against a group of individuals because of their ethnicity, religious beliefs, or nationality. For Lemkin, this was a gross misunderstanding of the realities of armed conflict.
Following the horrors of the Third Reich, to which Lemkin lost 49 members of his own family, the law professor petitioned the United Nations (UN) to craft a treaty that would recognise genocide as an international crime. The result was the 1948 Genocide Convention which defined genocide as violence “with intent to destroy, in whole, or in part, a national, ethnic, racial or religious group.”
The 1948 treaty underpins genocide accusations today
The fruit of Lemkin’s labours continues to act as a stanchion of international law. On November 11, the small West African country of Gambia lodged a complaint at the International Court of Justice (ICJ) at The Hague against Myanmar for violating the 1948 Genocide Convention.
In its complaint, Gambia alleges Myanmar’s government has carried out “genocidal violence” against its Muslim Rohingya community since 2017.
On face value, the actions of Myanmar’s military (the Tatmadaw) constitute the precise crimes Lemkin wanted to prosecute. Both Myanmar and Gambia are signatories to the 1948 Genocide Convention, establishing clear jurisdiction.
An independent UN fact-finding mission concluded Myanmar’s security forces launched a campaign of mass murder and rape against the Rohingya Muslims which bore “the hallmarks of genocide”, according to special rapporteur Yanghee Lee. Satellite images show the Tatmadaw razed Rohingya villages to the ground, prompting more than 720,000 Muslims to flee their homes and seek refuge in neighbouring Bangladesh.
The United Nations High Commissioner for Human Rights Zeid Ra’ad al-Hussein called the military’s actions, “a textbook ethnic cleansing against Rohingya Muslims.”
Most leaders would attempt to distance themselves from the allegations
Given the weight and credibility of the accusations, most world leaders would want to distance themselves from the heinous crimes of which Myanmar stands accused. It was, therefore, a shock to the international community when Myanmar’s de facto head of state, Aung San Suu Kyi, announced on November 20 that she would personally lead the defence at the ICJ.
Suu Kyi arrived in the Netherlands on Monday to participate in hearings at the Hague from December 10 to 12.
Superficially, her participation looks like a political risk. Aung San Suu Kyi’s defenders have long argued that their exemplar has been a reluctant bystander in the Rohingya crisis—harbouring grave misgivings about the treatment of the country’s Muslim minority but lacking the political clout to restrain the murderous inclinations of the military. However, her willingness to defend the military’s actions at the Hague jars with this interpretation.
In the face of overwhelming evidence and with just two days in front of the cameras, Aung San Suu Kyi cannot hope to sway international opinion. Nor does the decision to defend the charges herself make legal sense. If anything, her participation will be interpreted as an attempt to politicise the proceedings—an act that will draw scorn from an institution so closely married to tradition and legal protocol.
Why would Aung San Suu Kyi choose to defend the case herself?
Aung San Suu Kyi’s eyes are on her political future. Her decision to personally participate in the hearing was the result of domestic calculations.
The public in Myanmar does not see the accusations in the same way as many international observers. Rohingya Muslims, who make up 4.3% of Myanmar’s population, are not legally recognised among Myanmar’s 135 ethnic groups and are therefore not considered citizens. The Myanmese view them as Bengali intruders. They see conflict with the Muslim minority as inevitable.
“We know that we cannot kill them or throw them in the ocean,” says cartoonist Mg Mg Phaung Tane, “but it would also be difficult to live together peacefully as their [religious] beliefs are quite different from ours.”
For the Myanmese public, international criticisms of the treatment of Rohingya surmount to nothing more than a gross misunderstanding of the nation’s history and the realities of inter-ethnic relations.
This has been on display in the large outpourings of public support for Aung San Suu Kyi prior to her departure to the Netherlands. On Saturday, December 7, more than 100,000 citizens gathered in Naypyitaw carrying banners and portraits of the state counsellor to commend her decision to represent the nation in the legal proceedings.
From this perspective, Suu Kyi’s decision to defend her nation at the ICJ is the seizing of a political opportunity. With widespread anger at the genocide accusations and a November 2020 election to consider, Suu Kyi seeks to capitalise on the opportunity to unite her country against the interfering and disconnected international community.
Aung San Suu Kyi is hoping to rebuild support for the NLD
Suu Kyi’s party, the National League of Democracy (NLD), has witnessed some concerning developments of late. It lost several seats in last year’s by-election, and its inability to advance the peace process with ethnic armed groups, a lack of progress on constitutional reform, limited economic growth, and the promotion of Chinese mega projects in the face of public opposition, have only served to erode the NLD’s appeal to voters outside its Bamar heartland.
The NLD has, therefore, been keen to promote Suu Kyi as a defender of Myanmar’s interests abroad.
There have already been indications that the decision could have the intended result. Representatives from ethnic groups, including the Wa, Mongla, Restoration Council of Shan State (RCSS), and Pa-O National Liberation Organisation (PNLO) showed their support for Suu Kyi prior to her departure.
Will she enjoy legal success?
While Suu Kyi’s primary objectives are political, she could also secure a legal victory for Myanmar.
With a plenitude of evidence to the contrary, proving that the persecution of the Rohingya did not meet the legal criteria for genocide may prove elusive. However, there is a legal precedent that could offer an avenue to victory for Myanmar.
In 2007, Bosnia brought a genocide case against Serbia for its treatment of Bosnian Muslims during the 1992-1995 war. Despite the ICJ’s acknowledgement that the killings surmounted to an act of genocide, it ruled that Serbia was not responsible or complicit in the attack.
The case hinged on the fact that although the Serbian government made resources available to Bosnian Serbs and security forces, it did not know for certain the individuals were using those resources for genocidal purposes.
If Aung San Suu Kyi can effectively demonstrate that the state was not aware that individuals in the Tatmadaw were using state resources to genocidal ends, it may receive the same favourable ruling.
If found guilty, Myanmar may have to issue an apology and establish some form of collective compensation to the Rohingya community. However, this will fade into irrelevance if Suu Kyi can leverage the case to shore up support for the NLD at the polls.
Suu Kyi wants to play the role of the unflinching patriot that stands up for the nation on the international stage. The cost of further alienating herself among international human rights champions will be a small price to pay for political victory next November.