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Rohingya genocide case: why it will be hard for Myanmar to comply with ICJ’s orders

Aung San Suu Kyi before the International Criminal Court in The Hague in December. Koen Van Weel/EPA

Myanmar was ordered to “take all measures within its power” to prevent any further acts of violence against the Rohingya in late January by the International Court of Justice (ICJ). The court is considering a case brought by the Gambia accusing Myanmar of violating the 1948 Convention on Genocide against the Rohingya, a minority ethnic group.

The court has not yet determined whether violence in Myanmar’s Rakhine state in 2016-17 constitutes genocidal intent by Myanmar’s authorities, nor who should be prosecuted. But under the court’s “provisional measures”, Myanmar is expected to submit to regular reporting to the court within four months, and then every six months.

A few days before the ICJ’s ruling, Myanmar’s Independent Commission of Enquiry (ICOE), a domestic investigative task force, concluded its final report on the violence. It found that crimes against humanity were committed in Rakhine, and there was evidence of sexual violence, but it did not find evidence of genocidal intent by state security forces.

The ICOE recommended a domestic judicial process for prosecuting evidence and perpetrators in an effort to build and affirm the country’s judicial institutions. The commission’s findings were endorsed by the Myanmar presidential office and largely repeated by Aung San Suu Kyi, the country’s state counsellor and minister of foreign affairs, in an article in the Financial Times.

The statements by the ICOE and the ICJ reveal major differences over issues of jurisdiction, what establishes genocidal intent, sources of evidence, and different expectations of timeframes for reform. In rejecting the ICOE process, the ICJ’s orders – though driven by imminent concern and noble intentions – could both threaten to exacerbate tensions between Myanmar and the international community, and within the country, which is in a fraught election year.

Divided power

As a political scientist who studies development and environmental issues in Myanmar, I know that the pace of change happens slowly in a place stunted by decades of international sanctions and repressive autarky. The ICJ’s approach is blind to the context of Myanmar, a fragile and weak state where power is fragmented, government divided and internal conflicts run rife across the country’s seven regions and states under its federal system. Ethnic armed groups, army-backed militias and border guard forces run into the thousands.

My ongoing research on water, infrastructure and the environment in Myanmar has been filled with humbling moments as I have come to understand how, on the ground, every major issue of the day in Myanmar is viewed through the prism of 60 years of armed conflict and an unfinished peace process.

Critiques of the ICOE recommendations turn on a mistrust for Myanmar institutions and the looming power of the Tatmadaw, the state armed forces. After ruling the country for more than four decades, the military continues to hold a grip over key government ministries and a quarter of the parliament.

Yet, by the same the logic, those wary of a Myanmar-run judicial process should also be concerned about the demands placed on Myanmar by the ICJ and its political and institutional capacity to deliver on them. The ICJ provisional measures are tantamount to wholesale civil, political, bureaucratic, legal and military reforms at the drop of a hat, wielding a stick of shame rather than a ladder of support in a time of need.

Life at the Thet Kel Pyin camp for internally displaced people in Sittwe, Myanmar’s Rakhine State. Nyunt Win/EPA

Polarising rifts

International press coverage has simplistically portrayed the ICJ’s imposition of provisional measures as a “win” for international human rights and a “setback” for Myanmar. Numerous articles have focused on Syuu Kyi’s tarnished international reputation, painting her as complicit in alleged genocide.

This has alienated Myanmar, a country emerging from decades of isolation, from crucial international engagement, particularly with major Western democratic countries. These rifts present difficulties both for supporting pro-democracy initiatives in the country and assisting Rohingya communities with medical and humanitarian support.

The rifts have also driven Myanmar to develop closer ties with China, which has vital and strategic business interests in all of the country’s major conflict regions where vulnerable minorities reside. This includes the Rakhine region, where China plans to build a major sea port. China’s president, Xi Jinping, visited Myanmar on January 18 to sign more than 22 bilateral contracts with Myanmar.

Chinese president Xi Jinping, meets Aung San Suu Kyi on a state visit to Myanmar on January 18 2020. Nyein Chan Naing/EPA

Past and present conflated

The way which international law operates, based on precedents surrounding previous cases, has led to problems in its application in the Myanmar case. The term genocide was coined in 1942 by international jurist Raphael Lemkin, a Holocaust survivor who led a movement to push the UN to prosecute Nazi perpetrators as criminals, giving rise to the Genocide Convention.

The legacies of Lemkin’s framework for prosecution, forged through the horrors of the Holocaust and the 1915 Armenian genocide, continue to influence the way contemporary cases are viewed and discussed. Echoes of the “never again” narrative reverberate throughout the Gambia’s case against Myanmar at the ICJ.

Syuu Kyi is not comparable to Serbia’s Slobodan Milosevic or Nazi Germany’s Adolf Hitler, who were both at the the helm of coordinated machines of mass killing and wielded overwhelming control of civilian and military power. Myanmar’s civilian leaders do not have a well-developed and professionalised state capable of reigning in the military’s illicit moneymaking activities such as mining and the region’s largest methamphetamine operations.

Myanmar’s civilian leaders are being held liable at the ICJ for alleged crimes committed by the Tatmadaw and have the Augean task of turning around more than a century of colonially inherited complex communal legacies in a mere matter of months. This is why Syuu Kyi has publicly baulked at: “Unreasonable demands that Myanmar’s criminal justice system complete investigations in a third of the time routinely granted to international processes.”

Bridging the gap

I cut my teeth as a young undergraduate researcher studying genocide on the ground in the former Yugoslavia. I visited Srebrenica in 2002 and spent four years studying the difficulties of transitional peacebuilding. European states and NATO were willing to provide military presence to stabilise the post-conflict situation in Bosnia-Herzegovina and later spent several years trying to forge a shared government out of a UN protectorate. No such magnitude of political will, resources, or framework are remotely forthcoming from major Western countries to build the state and shore up peace in Myanmar.

Instead, the growing diplomatic isolation of Myanmar’s civilian government as it deals with the international consequences of the Tatmadaw’s actions has handed the military strategic and electoral leverage over civilian leaders.

Ultimately, the purpose of the ICJ process in Myanmar is to secure a “safe and dignified return” for displaced people. The prosecution of perpetrators, if the case advances that far, will require the cooperation and compliance of Myanmar’s officials. Failing to substantively engage with the very real concerns and points of disagreement between the ICJ and Myanmar has the potential to further destabilise the country’s already delicate political, security and rights situation.

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