What Does Daw Aung San Suu Kyi’s Defense at the ICJ Mean for Myanmar?

By The Irrawaddy 7 December 2019

Kyaw Kha: Welcome to Dateline Irrawaddy! This week, we’ll discuss Daw Aung San Suu Kyi’s move to contest the case against Myanmar at the International Court of Justice [ICJ] in The Hague, Netherlands. I’m The Irrawaddy chief reporter Kyaw Kha, joined by political analyst Maung Maung Soe and Haji U Aye Lwin, a Muslim leader and member of Religions for Peace-Myanmar and the Kofi Annan-led Advisory Commission on Rakhine State.

First of all, what is your view on Daw Aung San Suu Kyi’s decision to lead the legal defense team to The Hague?

Aye Lwin: I come from a religious background, so I don’t know much about political issues. But as a citizen, I would say her decision is a step in the right direction. In this age of globalization, we can’t live in solitude, only together with other counties—a concept known as a family of nations. We will be able to find the right answers and know the truth only when we cooperate, so we should use this opportunity to establish the truth.

KK: There are different views across the country about the legal case against Myanmar, which has drawn attention both domestically and abroad. What can we expect?

Maung Maung Soe: We will defend [Myanmar] against allegations of genocide. The allegations damage the reputation of our country. But on the other hand, this may be an opportunity in disguise. Since the events of Aug. 24, 2017 [when the Arakan Rohingya Salvation Army (ARSA) attacked security outposts in Rakhine], we have been at a disadvantage in the arena of the international media. We haven’t been able to explain the real situation on the ground to the international community.

This is partly because of the weakness of the government-run media. But it is mainly because the government banned media access to the entire event. [The government] imposed many restrictions on local and foreign journalists, preventing them from entering the area to report. Due to this restriction on press freedom, we had no access to accurate information from the ground. The longer we have no access to accurate information, the more Bengalis can spread one-sided propaganda, and their propaganda has influenced the world for long [Some Burmese refer to the Rohingya as Bengali, implying that they migrated illegally to Myanmar from Bangladesh, though many Rohingya trace their roots in Myanmar for generations].

The prosecution we face at the ICJ presents us with an opportunity to explain the truth to the world. This is an advantage that we might take from this setback.

KK: Some view the ICJ’s prosecution against Myanmar as a warning about human rights abuses in the country. Do you think it will help reduce human rights abuses inside the country?

AL: As far as I’m concerned, the democratic government elected by the people has not flatly denied those abuses. From the very beginning, it has acknowledged that there may be abuses. It has suspicions that there have been abuses and therefore it has formed [investigation] committees and commissions, and these investigations are not yet finished. The Religions for Peace Conference in Germany called the incident a human tragedy. There is a need to prevent such an incident from recurring and compensate those who suffered in the incident. So, we need to make practical changes, taking lessons from this bitter experience. If we can, we will see a favorable result.

KK: Do you think [the ICJ case] will serve as a warning to those who commit human rights abuses in Myanmar?

AL: For the time being, they [the military] say they will [take action against perpetrators]. There is an English proverb: “Walk the talk.” But their actions are not very satisfactory so far.

KK: There are different views about the ICJ prosecution even inside our country. There are differing views among political parties, and ethnic armed organizations also have differing views. Three members of the Northern Alliance—the AA [Arakan Army], the TNLA [Ta’ang National Liberation Army] and the MNDAA [Myanmar National Democratic Alliance Army]—have issued a joint statement, and their view is different from those of the Wa [United Wa State Army, or UWSA], the Mongla group [the National Democratic Alliance Army, or NDAA] and the KNU [Karen National Union]. Why are their views different?

MMS: The Gambia filed a lawsuit against Myanmar as a country. So, we need to defend ourselves as a united country. But then, our country is a not a united country. Over the past 60-70 years, there have been conflicts between the military and democratic forces in urban areas, as well as between the military and ethnic armed organizations. And there are also conflicts between the NLD [the ruling National League for Democracy party] and the opposition political forces as well as between the NLD and ethnic armed organizations. With such conflicts, it is impossible for our country to collectively express a position. This is the reality. So, they express their own views, which are different from those of others.

The Northern Alliance issued the statement first, saying they would cooperate with the ICJ. They say so because of their situation: they are currently fighting with the Tatmadaw [the Myanmar military] and the government. The last round of negotiations [between the sides] was held on Sept. 17. It is uncertain whether a negotiation will be held in December. They are fighting and there have been casualties on all sides. There are also civilian deaths [from clashes] in their regions and they suspect civilians in their regions have suffered from human rights violations and war crimes. [On Monday] in one case in Mrauk-U, one side said artillery shells fell and the other side said it was a mine attack. But three civilians, including a woman and two infants, were killed and four others were injured. Such incidents happen almost every day in war zones. So [these ethnic armed groups] support [the prosecution at the ICJ] on the principle that the enemy of their enemy is their friend.

But for the Wa and the Mongla groups, they have made peace with the government for 30 years. They have no grievances and hatred [toward the government], and they have been living peacefully. So, it is not strange that they support the government [to defend itself against the ICJ prosecution]. Meanwhile, the SSPP [Shan State Progress Party] issued a neutral statement. At the meeting of the PPST [Peace Process Steering Committee] of the 10 signatories [to the National Ceasefire Agreement], they issued a statement expressing optimism. To summarize, we can’t stand together and we are divided by different political and military situations and perspectives.

KK: Some are optimistic that the prosecution will bring the military and the government closer as the government has assumed responsibility and will contest this case over the actions of the military. What is your view?

AL: It appears to me that the think tank of the military has changed its tactics. Military leaders visited non-Buddhist religious sites and they also dropped a lawsuit against the KBC [Kachin Baptist Convention] president [Reverend Hkalam Samson]. These indicate that the military has changed its tactics. And the military, though the Constitution says it will hold a political leadership role in the country, has started to say it will act according to the instructions of the civilian government. I view these as good signs.

KK: Some suggest that Daw Aung San Suu Kyi decided to [lead the defense at the ICJ] to recover her party’s popularity ahead of the 2020 general election. Some suggest that her decision will also have impacts on constitutional reform. What is your view?

MMS: Currently, there are ongoing rallies in central Myanmar in support of Daw Aung San Suu Kyi’s trip to The Hague and I have seen signs of more such rallies [to come]. Considering this, it can have an impact on the [voters] in central Myanmar in the 2020 general election. Whether or not she has this motive in mind regarding her decision to go to The Hague, she can win some popularity for her decision.

But then, we will need to wait and see to what extent the government and the military can cooperate in contesting the case at The Hague. It will be interesting if the two can work out an agreement over constitutional amendments. Though the Tatmadaw and the NLD are said to be cooperating, we will have to wait and see to what extent the two can cooperate. As the two are opposing each other in the Parliament, it looks as though they are not cooperating much on constitutional amendment. We will have to wait for one more year [until the next election] to see the results.

KK: The ICJ will start hearing the case on Dec. 10. At the same time, the Tatmadaw is investigating the alleged mass killings in Gu Dar Pyin Village [in Rakhine State]. Some suggest that the investigation result will be released before Daw Aung San Suu Kyi’s trip. What is your view on this?

AL: Before talking about it, I would like to talk about two things regarding the case. Firstly, about ARSA: we don’t accept the use of arms in conflicts. Followers of Islam especially do not accept or support using arms. But we need to think about the root cause. We need to think about why civilians with sticks and knives came and attacked the security forces who were armed with guns.

Secondly, about the conflict between the Tatmadaw and the AA in Rakhine State. If we study that in comparison to conflicts with followers of Islam, we will be able to know what happened there. They said followers of Hindu and ethnic Mro people were killed. We visited the area as members of the [advisory] commission and Religions for Peace. We interviewed Hindu women and Mro people. I asked them who did the killing. They said the killers were masked, holding arms and wearing uniforms. We want to know who the real perpetrators were. In Rakhine, people have been killed even in Sittwe and the perpetrators are never identified. My point is that such things happen in conflicts because we are humans filled with anger and greed. It is natural that you lose control when your comrade gets shot. So we can’t deny that those things happened. If you do good things, you will get a good name. When you do bad things, you will get a bad name. You can’t ever hide your misdeeds. [The government] should acknowledge what happened, identify the perpetrators and present plans for how to prevent such things in the future.

About the Gu Dar Pyin case, I only know from newspapers. In preliminary investigations, the military said it has enough evidence to bring a case to the court martial. Something has happened and the military is conducting its investigation into it. This is a good sign I would say because they need to recognize what happened there. They can’t hide it. As today is the age of globalization, with advancement in information technology, if they face it and handle it as it is, we can get close to the truth.

KK: There are reports that the complainant [The Gambia] will submit strong evidence to the ICJ. What could happen if we lose the case?

MMS: International media would have covered it if [The Gambia] will present strong evidence. I don’t think [the media] will conceal it. I think what has appeared in the media so far is the evidence that will be submitted to the court.

Regarding the question of what if we lose: the ICJ will decide if the crimes amount to genocide or not. If the ICJ decides that they do, it usually transfers the case to the ICC [International Criminal Court]. The ICJ doesn’t have a mechanism to implement a punishment. It has to submit [the case] to the UN Security Council. So, the decision of the UN Security Council will be important.

KK: Thank you for your contributions!

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