Guest Column Did Myanmar Advance International Law in The Hague?

Myanmar State Counselor Daw Aung San Suu Kyi takes part in International Court of Justice hearings in December 2019. / ICJ

Daw Aung San Suu Kyi, foreign minister of Myanmar, went to The Hague last December to defend her country against charges of genocide. By going, she also acknowledged that the international community has a legitimate interest in holding countries accountable for genocide and crimes against humanity. Obviously, this includes Myanmar, but as importantly it also includes every other country. By responding as she did, Myanmar’s foreign minister actually raised the bar for other countries accused of committing war crimes.

Myanmar is perhaps the first country to acknowledge the legitimacy of the international court, and the requirement that such serious accusations must be responded to. Indeed, such genocide charges are typically leveled only at already-defeated countries and deposed dictators. Or, as commonly, such crimes are not prosecuted at all. This has been the general policy for most of the other genocides that took place since the international genocide law was promulgated after World War II. By responding, Myanmar is in fact helping to establish new levels of accountability for not just its own army, but the larger community of nations.

Evolution of morality and law

The classical French sociologist Emile Durkheim once wrote that the response to crime is necessary to stimulate changes in morality. Meaning, the reaction of governments to criminal acts must occur if something is to become redefined as immoral and illegal. Notably, Durkheim did not mean that crime is desirable. Rather he meant that an all-powerful society must respond to an act for it to become criminal, even though it may not have been criminal in the past, but simply “normal.” Indeed genocide was normal in the prosecution of war and conquest in many minds until the Holocaust in World War II. Genocide was simply what nations did in the conduct of war. But it is no longer. Durkheim wrote about how such change occurs by referring first to a “perfect society.”

“Imagine a society of saints, a perfect cloister of exemplary individuals. Crimes properly so called will there be unknown; but faults which appear venial to the layman will create there the same scandal…If the society has the power to judge and punish, it will define these acts as criminal and treat them as such….

“Crime is then necessary; it is bound up with the fundamentals of all social life, and by that very fact is useful, because these conditions of which it is part are themselves indispensable in the normal evolution of morality and law.”

For example, when the British occupied Burma, they defined challenges to its colonial authority as “dacoity,” a new crime that had never been heard of before. The acts became illegal, and those committing the act were imprisoned or hanged by the British, so all would know that challenges to British authority were defined as criminal, and punishable.

New genocide law

Genocide used to be something quite normal (just like the enforcement of censorship laws in Myanmar, as The Irrawaddy well knows). Before the International Genocide Convention was established in 1947, there was no international law against genocide, and powers around the world routinely issued orders to eliminate enemies living in a particular village, representing a particular faith or particular ethnicity. Only after the extreme horror of the Holocaust in Europe did the victorious Allies seek to make what the Germans did criminal for all governments, and write the genocide statute. They did this after conducting the Nuremberg and Tokyo War Crimes Trials, which were sometimes criticized as “victor’s justice.” By promulgating the genocide law, the hope was that genocide would be recognized as a crime against the community of all nations at all times, and separate from accusations of victor’s justice. But there was a problem. For genocide really to become illegal there must be a court with, as Durkheim wrote, the “power to judge and punish, acts [defined] as criminal and treat them as such.”

And that’s how things stood for many decades. Because even though there was the 1947 Genocide Convention, the international community did not use it to redefine what nations did as criminal. Thus, after the law was written, the British suppressed the Mau Mau in Kenya, the French conducted colonial wars in Indochina, Algeria and elsewhere; the Americans had their wars in Korea, Vietnam etc.; the Chinese had their Cultural Revolution; and the Russians had their Gulags. There was also the Biafran Civil War, Indian Partition, Bangladesh Revolution, Indonesian massacre of Chinese, Ethiopian famines, Rhodesian Civil War, Cambodian massacres and so forth.

All such situations could be called out as genocide, as was done for the Rohingya. Except that the international community in the past seemingly did not do that to sitting members of the United Nations, particularly the permanent Security Council members with veto power. They were not called out because, as Durkheim might put it, genocide was still seen as “normal” in the context of international relations and the laws of war, and therefore not subject to prosecution. In fact, such mass killing did not become fit for prosecution until, as Daw Aung San Suu Kyi pointed out in The Hague, the statute was finally used in the late 1990s against the former Rwandan government that committed the 1994-95 genocide against the Tutsi. Since then, genocide laws have occasionally been used against weak countries like Sudan, Sierra Leone, Cambodia, Serbia and Liberia, usually after their civil wars resolved themselves, and the international community could assign blame for war crimes, typically to the defeated. Weak defenses were occasionally raised by defendants, but not on behalf of a sovereign nation.

The case against Myanmar

This was the context for the 2019 case made against Myanmar by The Gambia and its sponsors in The Hague. Myanmar’s security forces were accused of committing genocide by carelessly expelling Rohingya, and in the process brutally killing at least 10,000. The case was plausible under the genocide statute because the Rohingya were long-term residents from a minority group, they were expelled, and their citizenship status was denied. In other words, the complaint said that there was an attempt to eliminate violently a minority group as the genocide statute specified. This was, like the case of the Rwanda genocide, a chance for the international community to raise the standard for genocide prosecution, and thereby revive the genocide law. It also helped that Myanmar seemed poor and weak, and was already a long-time international outcast. From an international perspective it looked like a cheap way to raise again the problems of genocide, but without risking the wrath of powerful countries.

But a strange thing happened on the way to the International Court: Foreign Minister Daw Aung San Suu Kyi, a Nobel Peace Prize winner, decided to raise a defense on behalf of her long-term political foes, the Myanmar military. This was unusual. Most countries simply ignore such trials, asserting that international courts do not have jurisdiction over “internal matters.” Indeed, this is why the only people to be actually tried for war crimes are typically “former” governments, and not ones still ruling. Daw Aung San Suu Kyi, however, turned the case on its head by responding to the indictment and actually going to The Hague. There she did three things. First, she acknowledged the jurisdiction of the court over governments who fail to prosecute for war crimes and/or genocide. Secondly, she asserted that Myanmar has the right to expel non-citizens, while admitting that the army had done so in a sloppy and cruel fashion. Thirdly she claimed that her political adversaries, the Myanmar military, had the capacity and right to prosecute soldiers and maintain discipline so that it was not necessary for the international court to become involved yet. The question for Daw Aung San Suu Kyi seems to be about who would respond; not whether a response was warranted. She acknowledged though that an international response is necessary.

This was actually tricky for the great powers. Myanmar is hardly the only country known for expelling masses of long-term residents, with innocents dying as “collateral damage.” Indeed, many countries have expelled peoples in recent decades. Poland and Czechoslovakia expelled Germans at the end of World War II; and India, Pakistan and Bangladesh “exchanged” populations between 1947 and 1973. China forcibly moved populations during the Cultural Revolution. Central African countries expelled refugees in 1996. The United States expelled, and is still expelling, its long-term Latin-American population today. Myanmar’s neighbor India is also seemingly in the process of excluding substantial portions of its Muslim population from citizenship.

But can Myanmar’s army really police itself? Daw Aung San Suu Kyi has in court given an affirmative answer—an admittedly surprising response for someone who was herself a political prisoner for many years. But the more important answer Daw Aung San Suu Kyi gave is that sovereign nations are answerable to the wider world community when it comes to issues of genocide, war crimes and human rights. In this response she is raising the standard for what is criminal in the sense that Durkheim wrote about. In this fashion, she, as well as the court, are defining acts which have been normal for many years—genocide and the expulsion of populations—as matters that can be legitimately reviewed by international courts. She is doing this by using the mechanism Durkheim identified for creating a new morality that defines something that was formally normal, as newly immoral and illegal. Her response is that all nations are potentially answerable for the actions of their security forces to the international community. It will be interesting to see if other nations agree with her in the future.

Tony Waters is director of the Institute of Religion, Culture and Peace at Payap University in Chiang Mai, Thailand. He works with Burmese, Karen and other students in the university’s PhD program in Peacebuilding. He is also a professor of Sociology at California State University, Chico, and author of academic books and articles. He can be reached at [email protected].