Myanmar: Trials and Tribulations

Myanmar is facing a challenging year. The jurists on the International Court of Justice are considering whether Myanmar violated the Genocide Convention in its treatment of the country’s Muslim Rohingya population; the ruling National League for Democracy (NLD) is trying to pass constitutional amendments strongly opposed by the military; and the many stakeholders in the country’s peace process remain divided on key issues. Elections will be held later this year, and several parties are running on platforms emphasizing identity politics. This may unite certain constituencies but move the country further away from realizing an inclusive polity.

Under the Spotlight at the International Court of Justice

In December 2019, the International Court of Justice heard arguments by The Gambia and Myanmar regarding mass atrocities committed primarily by the Myanmar military against Rohingya civilians. The Gambia’s legal team drew on a 2018 United Nations fact-finding report that detailed the widespread burning of Rohingya villages, the killing of thousands of civilians including children, and pervasive rape. More than 700,000 Rohingya fled to Bangladesh. While it may take years before a judgment is reached, The Gambia urged the jurists to impose provisional measures on Myanmar to prevent further genocidal acts against the 600,000 Rohingya still in the country. The jurists did so on January 23, 2020. They ordered Myanmar to do everything possible to prevent the military or others from carrying out genocidal acts against the Rohingya, to preserve evidence related to the alleged crimes, and to report back semi-annually on the steps the government has taken.

Aung San Suu Kyi had stunned the world by deciding to lead her country’s legal defense team at The Hague in her capacity as foreign minister. She may have felt that by taking charge, there was a better chance of a favorable outcome. There was a domestic political benefit to be gained as well. At a time when her government was struggling to realize its 2015 election promises – namely peace, constitutional reform, and higher standards of living – she was able to strengthen her popularity by personally representing the country. This gave her and her party a boost going into an election year. 

While much of the international community is dismayed by how the Rohingya have been treated, many in Myanmar have a different understanding of the situation. Since 2012, various political, military, and religious leaders in the country have incited fears of foreign domination and the end of Myanmar as a Buddhist nation. Such themes have been employed since the colonial era to rally citizens at critical moments. Until today, descendants of colonial-era Chinese and especially Muslim South Asian immigrants have struggled to be recognized as full citizens. Muslims in Rakhine state, many of whom self-identify as Rohingya, have been particularly targeted because they could potentially become the majority population in the state. They descend from a mix of indigenous ancestors and colonial-era migrants, but the military leadership and politicians have labelled them all illegal Bengali migrants. Following intercommunal violence between the predominantly Buddhist Rakhine population and Muslim Rohingya in 2012, ultra-nationalist messages spread by monks, the military, and other influencers on social media stoked fears that all Muslims, and particularly the Rohingya, posed an existential threat to the country. While Aung San Suu Kyi and other senior members of the NLD originally distanced themselves from such rhetoric, they ended up aligning with public opinion rather than trying to shift it. This helped them to more tightly bind the Buddhist public (over 85 percent of the population) to the party. 

In both 2016 and 2017, military operations were launched in response to deadly Arakan Rohingya Salvation Army attacks on border security posts and some nearby non-Muslim villages. The Rohingya insurgent group’s brutal actions were the primary focus of Myanmar media accounts. While the attacks were indefensible, what was lost in the local narrative was the apartheid-like conditions in which many Rohingya were living and the hopelessness they felt. People in Myanmar were not fully aware of this and knew little about military abuses perpetrated during counterinsurgency operations; state media and most of the independent media in the country did not report on it. The military blocked journalists from entering areas where it had carried out operations and dismissed allegations of abuses made by international rights groups as untrue.

At the International Court of Justice, Aung San Suu Kyi expressed sympathy for all who had been affected by the violence and admitted that military abuses may have happened. However, she insisted there was no genocidal intent. She also argued that international justice mechanisms should only be considered if domestic accountability efforts have failed. Yet the reason The Gambia initiated the case was precisely because Myanmar’s own civilian and military investigation commissions had found no evidence of wrongdoing. Moreover, the constitution assigns military courts responsibility for cases involving military personnel, reducing the likelihood that any senior officers would be brought to trial. After two Myanmar journalists brought one case of extrajudicial killings to light, seven soldiers were imprisoned for less than a year. The journalists, however, spent 16 months behind bars for their investigative reporting. Despite this, Aung San Suu Kyi asserted at The Hague that there would be more prosecutions of military personnel based on the upcoming results of another government-organized fact finding investigation. This one included two international members. On January 20, 2020, the commission gave the NLD government its report, which concluded that war crimes had been committed but not genocide. The investigators had interviewed individuals of various ethnicities in parts of northern Rakhine state but not Rohingya refugees in Bangladesh. 

Two other international judicial processes are also underway. In November 2019, the International Criminal Court opened an investigation on the grounds of forcible deportation of hundreds of thousands of Rohingya and persecution based on ethnicity and/or religion. Myanmar is not a member of the court but could be held accountable for actions that affect Bangladesh, which is a member. Meanwhile, the Argentine former special rapporteur on human rights in Myanmar joined Rohingya individuals in filing a case in Argentina under the principle of universal jurisdiction. They specifically accused Aung San Suu Kyi of using her power to help, rather than hinder, efforts to destroy the Rohingya as a people. 

The Economic and Political Implications of the Trials

Amid the spotlight on the Rohingya issue, Myanmar’s economy continues to suffer as many tourists and foreign investors shy away from the country. To boost tourism revenue and employment opportunities, the NLD has loosened visa requirements for citizens of East Asian countries and worked hard to attract foreign investors. The government has made it easier for foreign companies to register and operate in Myanmar, but companies concerned about instability in Rakhine state and reputational risk have remained wary.  

Japan and South Korea have sought to strengthen their engagement in Myanmar as business partners, donors, and friends of the government, although their companies have found the investment climate challenging. Meanwhile, China has taken Myanmar’s political isolation and need for economic investment as an opportunity. It has defended Myanmar regarding its handling of the Rohingya situation at the UN Security Council and elsewhere, but it has also pushed the Myanmar government to move ahead with the implementation of its Belt and Road Initiative (BRI) infrastructure projects in the country. These include a deep sea port and special economic zone in Rakhine state, along with rail and road projects that will connect China to the Indian Ocean. Although Myanmar’s military regime instituted governance reforms in 2010 in part to reduce the country’s dependence on China, the NLD government has been drawn back into China’s orbit. In January, Xi Jinping made his first state visit to Myanmar to commemorate the 70th anniversary of the establishment of bilateral ties and sign investment agreements. 

Giving the Peace Process Another Try

Turning to the peace process with Myanmar’s many ethnic armed organizations, formal talks are set to resume in the next few months after a yearlong suspension. Two of the larger ethnic armed organizations had disengaged due to frustration with military advances into their territories and the military’s unwillingness to compromise. Now, though, the NLD and many of the more than a dozen ethnic armed organizations want to try to move the process forward before the election. There are several challenges. 

First, the various stakeholders have different interests. The NLD campaigned on a promise to institute a federal democratic system, but has so far been unwilling to decentralize power on its own and has not made its positions clear. The ethnic armed organizations, and many ethnic-based political parties and civil society organizations, want significant political and economic powers handed over to the ethnic states and regions within those states. They would also like their armed groups to be incorporated into what they call a federal army, an idea that is anathema to the military leadership. The military leadership seeks to weaken the ethnic armed organizations to reduce their political clout. Also, the generals may not want the NLD to achieve success in the talks just before an election in which its military-backed party is also running.

Second, four ethnic armed organizations are currently engaged in active fighting with the military, and their participation in the formal peace process is not guaranteed. The Arakan Army, composed of Buddhist Rakhine people, has become particularly aggressive. It has kidnapped security personnel and government officials and called for an independent state. As many as 100,000 people have been displaced by fighting between the military and the Arakan Army over the past year. 

Another source of potential friction is that some of the ethnic armed organizations expressed support for the International Court of Justice’s investigation into the genocide claims. Stating that their civilian populations had experienced similar systematic human rights abuses during military operations, they want the military to be held to account. 

Finally, the role that China will play in the peace process this year is uncertain. In the past, China has compelled some of the armed groups to attend formal talks. Stability in Myanmar would have many benefits, but friction between the northern ethnic armed groups and the government has enabled China to exercise leverage over both parties. 

Dueling Constitutional Amendments

The other political issue that looms large is the NLD’s intent to hold a vote in parliament on a package of constitutional amendments that would reduce the military’s role in politics, among other things. The military can veto it, as all amendments related to the military’s prerogatives must be passed by more than 75 percent of the parliamentarians, and the constitution reserves a quarter of the seats in parliament for the military. Yet the NLD wants to at least show the public that it tried. The military sees the NLD’s initiative as an unacceptable affront. 

The military has also tried to finesse the situation by having its party propose an amendment of its own: allowing chief ministers (akin to governors in the United States) to be elected by their state assemblies rather than appointed by the president. This was appealing to many ethnic nationalists who had been disappointed that the NLD government had not taken this step. In some of the seven ethnic states, however, the military could be in a good position to select the chief minister, as the military also has a reserved bloc of seats in the state assemblies and could form a coalition with smaller parties. Some ethnic politicians in such states therefore oppose the change for now. Whether this proposed amendment will also be voted on this year remains unclear.

National Elections and the Rohingya

Dozens of parties will be running in the 2020 election, expected to take place in November. Many of them will emphasize what they can do for their race and/or religion. The NLD is currently poised to do well in the elections but will not want to take any chances. Thus, it is highly unlikely that the NLD would make major policy changes to facilitate the return of large numbers of Rohingya refugees or to ensure full citizenship rights to Rohingya remaining in the country. Small scale initiatives to promote peaceful coexistence and restore some rights to Rohingya in Rakhine State may be as far as the NLD is willing to go for the time being. The Rohingya will continue to look to international judicial processes for a solution.