By Aman Ullah

On 11 November 2019, the Republic of The Gambia instituted proceedings against the Republic of the Union of Myanmar before the International Court of Justice, the principal judicial organ of the United Nations, alleging violations of the Convention on the Prevention and Punishment of the Crime of Genocide through “acts adopted, taken and condoned by the Government of Myanmar against members of the Rohingya group”.

The Gambia argues the court that, “From around October 2016 the Myanmar military (the ‘Tatmadaw’) and other Myanmar security forces began widespread and systematic ‘clearance operations’ –the term that Myanmar itself uses– against the Rohingya group. The genocidal acts committed during these operations were intended to destroy the Rohingya as a group, in whole or in part, by the use of mass murder, rape and other forms of sexual violence, as well as the systematic destruction by fire of their villages, often with inhabitants locked inside burning houses. From August 2017 onwards, such genocidal acts continued with Myanmar’s resumption of ‘clearance operations’ on a more massive and wider geographical scale.”

The Gambia contends that these acts constitute violations of the Genocide Convention. According to The Gambia, Myanmar has breached and continues to breach its obligations under the Genocide Convention; Myanmar must cease forthwith any such ongoing internationally wrongful act and fully respect its obligations under the Genocide Convention; Myanmar must ensure that persons committing genocide are punished by a competent tribunal, including before an international penal tribunal; Myanmar must perform the obligations of reparation in the interest of the victims of genocidal acts who are members of the Rohingya group, including but not limited to allowing the safe and dignified return of forcibly displaced Rohingya and respect for their full citizenship and human rights and protection against discrimination, persecution, and other related acts, consistent with the obligation to prevent genocide under Article I; and Myanmar must offer assurances and guarantees of non-repetition of violations of the Genocide Convention.

On 20 November 2019, Myanmar’s government announced that its leader, Daw Aung San Suu Kyi, will head a legal team it will send to the International Court of Justice in the Netherlands to contest a case of genocide filed against it. She will deploy unidentified “prominent international lawyers” to challenge The Gambia’s complaint. But has not shared what its legal strategy at The Hague will entail beyond “defending the national interest.” What’s certain is that Suu Kyi and Myanmar’s lawyers face an uphill battle in challenging the extensively documented campaign of mass murder, gang rape, and mutilation targeted at Rohingya civilians.

News of Aung San Suu Kyi’s decision this week to lead Myanmar’s delegation to The Hague to defend an accusation of genocide sent shock waves through Myanmar and beyond. While her domestic supporters may be elated and offer her full support, human rights groups and Suu Kyi’s one-time international supporters are dismayed at her decision to defend what many consider indefensible.

Many are wondering if Suu Kyi is in her right mind because defending the Myanmar military actions at the international court against credible charge of genocide and crime against humanity is a no-brainer for anyone, let alone a noble peace prize recipient.

The Gambia’s complaint. That evidence includes a 444-page report issued in September 2018 by the United Nations Fact-Finding Mission that concluded that there was evidence of atrocities by Myanmar security forces against the Rohingya warranting criminal prosecution for crimes against humanity, war crimes, and genocide. The report named top military officials as targets for investigation and prosecution as well as civilian authorities who “have spread false narratives, denied the wrongdoing of the [security forces], blocked independent investigations … and overseen the destruction of evidence.”

Why Suu want to go and to lead her legal team?

Suu Kyi is neither the head of state nor head of the government. To lead the legal team to Hague is neither by the consent of the president nor by the resolution of the parliaments nor by the request of the army chief who is the most powerful person in Myanmar. The announcement was posted on the Facebook page of the office of the state counselor, a position Ms. Aung San Suu Kyi holds along with that of foreign minister. Myanmar’s government releases much public information on Facebook. That’s mean it is her own initiative to go, to lead the legal team and to face the court to protect the national interest. As it is a legal process and face through legal procedures, there need legal experts. She can send the judicial experts, country’s chief justice, country‘s attorney general and with a team of world’s topmost layer who can face genocidal cases. But Suu Kyi chooses to tackle the ICJ case is like what king Anawrahta did in 1077.

On 11 April 1077 when the King Anawrahta went in the outskirts of Pagan, the locals informed him that a wild buffalo was killing many men in their area. In spite of the king had many generals, so many soldiers and many other employees who can tackle it easily, the king himself went alone to tackle the buffalo case. But the king was killed by that buffalo and then disposed of the body in such a way that it was never found. The chronicles state that a nat (spirit) appeared in the guise of wild buffalo and gored him to death, and then demons took away his body.

Moreover, she already had previously made two major strategic mistakes.

First:

On 9 September 1988, U Nu reiterated in Rangoon that he was still the ‘legal Prime Minister’. ‘U Nu initiated to form an interim government and invited opposition leaders to join him. Indian Prime minister Rajiv Gandhi had already signalled his readiness to recognize the interim government and Burmese troops started to change sides of the opposition while the Burmese Navy almost totally siding with the opposition. However, Aung San Suu Kyi categorically rejected U Nu’s plan by saying “the future of the opposition would be decided by masses of the people”. Ex-Brigadier Aung Gyi, another opposition politician at the time of the 8888 crisis, followed and rejected the plan after Suu Kyi’s refusal. Crucial months were passed on the street and the interim government was not internationally recognized due to lack of support from opposition.

Many believed that if U Nu was success to form the interim government with the support of Suu Kyi and Aung Gyi, the peoples of Myanmar did not need to suffer under the military regime for another two decades; Suu Kyi herself did not need to suffer more than fifteen years under the house arrest; millions of citizens of the country did not need to flee from the country to escape persecution of brutal military regime; the different nationalities of the country did not need to take arms against the brutal military regime; and these brutal military never get such chances to stay illegally holding the power on their own.

It was Suu Kyi’s individual choice not to support to the U Nu’s legal government not a popular choice. Instead of siding with the democratic group her decision went to the army’s side. It was her a major strategic mistake for which the whole country had to suffer for more than twenty years,

Second:

Burma’s 2008 Constitution is designed to present the appearance of democracy, while maintaining ultimate military control. It is also specifically designed for the eventuality of the National League for Democracy (NLD) winning elections and forming a government, without this being a threat to military control. Clauses were put in the Constitution to prevent Suu Kyi not to become head of the state. Section 59f and possibly section 59d bar Aung San Suu Kyi from becoming President. Clause 59f states someone cannot become President if their children have foreign citizenship. Aung San Suu Kyi’s children have British and American citizenship. 59d states that the President has to be well acquainted with military affairs.

The Burmese government successfully played its age old tactic of setting up long-winded processes which could lead to change, which the international community went along with yet again, before.

After the election, regardless of anyone wins:

• Military appoint Home Affairs Minister, controlling police, security services and much of the justice system.
• Military are not under government or Parliamentary control, so they could continue attacks in ethnic states, and use of rape as a weapon of war.
• 25% of seats in Parliament reserved for the military ensures a military veto over constitutional democratic reforms.
• Military dominated National Defense and Security Council more powerful than parliament or government.
• Military have constitutional right to retake direct control of government.
• Military have direct and indirect control over huge proportion of Burma’s economy.

In spite of that Suu Kyi went to the pole of 8 November 2015 in which an estimated number of people either deliberately disenfranchised or unable to vote for other reasons is likely to be at the very least almost 10 million people, or 20 percent of the population. This figure includes:
• Almost 5 million migrant workers living abroad • Up to 500,000 Buddhist Monks and Nuns unable to vote • 600,000-800,000 Rohingya unable to vote • Around 100 political prisoners can’t vote in the election • 100,000 to 500,000 internal migrants • 200,000 Rohingya refugees in Bangladesh • 109,000 in refugee camps in Thailand • Several million in ethnic areas where there is conflict or which are not under central government control • Several million due to voter list errors (just a 10% error rate would disenfranchise 3.2m voters).

Although the National League for Democracy (NLD) won a landslide victory in the November 2015 election, enabling pro-democracy icon Daw Aung San Suu Kyi to become State Counselor, people in Myanmar were enthusiastic and foreign observers hailed the event as an important step towards democratic rule. But less than two years later, it is becoming increasingly obvious that Myanmar’s first truly elected government since 1960 is a mere fig leaf for continued military rule — which has to take the blame for issues beyond its control, among them the treatment of ethnic and religious minorities, the arrest of journalists and inertia in the local administration.

Myanmar today has a political system that was designed by the military to preserve its power. It suits them perfectly and they have no intention to change it. It is important to remember that the “reforms” were not introduced because the generals suddenly had decided to become liberal democrats but to break their international isolation in order to lessen their dependence on China. The bitter reality is that it’s the Myanmar generals who have successfully — and cleverly — managed to engage the West, not the other way round.

Without able in reforming the 2008 constitution going to the election is also another major strategic mistake of Suu Kyi and her NLD. After forming the government instead of doing something for the welfare of people she went to an unfinished reconciliation process with the army generals. That’s mean instead of serving to public who have been suffering under the jack boat of successive military regimes, Suu Kyi chooses the army side. May be because of her father’s army.

This time, Suu Kyi is not to the ICJ may not be to ensure the Court that her government is going to respect of its obligations under the Genocide Convention and try to stop on going internationally wrongful acts. May not be to ensure that her government must perform the obligations of reparation in the interest of the victims of genocidal acts who are members of the Rohingya group, including but not limited to allowing the safe and dignified return of forcibly displaced Rohingya and respect for their full citizenship and human rights and protection against discrimination, persecution, and other related acts, consistent with the obligation to prevent genocide under Article I of Convention. May not be to offer assurances and guarantees of non-repetition of violations of the Genocide Convention.

Rather she is going for defending the Myanmar military actions at the international court against credible charge of genocide and crime against humanity. Moreover, she may be forthwith discarded, deny, and defy all allegation that the Gambia blamed against the government. Her so-called to defend the national interest not to defend the peoples of the country from the wrong doings of the army rather to justify the wrong doings her father’s army.

Since the Rohyigya carnage in 2017, Suu Kyi’s reputation in the international community and among human rights groups has been severely tarnished by her inaction or unwillingness to defend the Rohingyas or speak out against the Burma Army’s brutality. She is accused of complicity in the crimes against the helpless Rohingya people for siding with the army and describing its actions as legitimate and proportionate.

It is noticeable that since the Rohigya crisis, Suu Kyi has rarely travelled outside her country and most of her international travel have been in Asia. The only time she set foot in the west since the Rohingya crisis was to Hungary, where she met with Viktor Orban, the authoritarian and racist leader.

Besides defending the army, her government rejected any cooperation with the international community to investigate crimes and hold individuals responsible for the murder and forced displacement of almost a million Rohingyas from the country. Instead of cooperation, she blamed the international community and accused them of undermining Myanmar internal sovereignty. As she has come under international pressure to bring justice to the Rohingya, Suu Kyi has become more authoritarian and less tolerant of dissent.

The continued lack of progress on Rohingya issue and Myanmar national reconciliation has done little to salvage Suu Kyi’s reputation. However, by choosing to be the face of the genocide defense at the international court, Suu Kyi is going for broke with her reputation. She has also confirmed what many have suspected since the Rohingya crisis that she is not a defender of human rights, freedom and democracy. She will now always be remembered as a defender of genocide in the eyes of the international and human rights community.

As CR Abrar, an academic and rights worker with an interest in refugees, migrants and the stateless, rightly says the National League for Democracy’s excitement about what it perceives to be the State Counsellor’s bold decision “to face the lawsuit by herself” lays bare that the fallen angel had all along been in absolute cahoots with the murderous generals of Burma.”