Myanmar at The Hague: Will the Rohingyas get justice?
Geoffrey Aung
Geoffrey Aung is a Ph.D. Candidate in the Department of Anthropology at Columbia University, where his research focuses on the politics of infrastructure and logistics projects in Myanmar. He spends a little too much time on Twitter at @Rgnhardliner
In Turkey, it is not always easy to explain what I am doing or where I am from. My wife is working here, I say, and I am writing my doctoral thesis. “So you are writing about Turkey? Are you studying at one of the universities here?” No, actually, I write about Southeast Asia, and my university is in the U.S. “Then where are you from?” I’m from the U.S., I reply and, not looking like what Turkish people often expect of Americans, I wait for a version of the usual follow-up: “But where are you really from?” Occasionally I’m patient enough to explain that my father’s family comes from Burma, or Myanmar, but sometimes neither name for the country really registers. “It’s between India and Thailand,” I say, shrugging.
Myanmar’s name recognition in Turkey might be increasing, however, and not for the better. At recent talks I’ve given at universities here in Ankara, students and faculty have been eager to ask me not so much about my research expertise — land and infrastructure politics in southern Myanmar — but about Myanmar’s treatment of the Rohingya. And understandably so. Since 2017, some 700,000 Rohingya people have languished in camps in Bangladesh, having fled western Myanmar’s Rakhine State following brutal “clearance operations” by Myanmar security forces, widely considered tantamount to genocide. 200,000 Rohingya were already living in camp following earlier rounds of violence dating back decades. Then in recent months, the coronavirus pandemic reached the Rohingya camps. Aid agencies have built and expanded isolation units. While concerns remain high, however, to date the camps have seen under ninety cases and only six related deaths — in a country of well over 300,000 cases and 4,000 deaths.
But in Turkey, it was a trip last year that drew attention. Aung San Suu Kyi, Myanmar’s de facto head of state and a Nobel Peace Prize laureate, traveled to The Hague to defend Myanmar’s government against genocide allegations at the International Court of Justice (ICJ). Here was one of the world’s staunchest, most principled defenders of human rights and democracy, crossing the world to shield Myanmar’s military — the same military she so stoically opposed over the better part of two decades under house arrest — against accusations of the utmost gravity. International media sharply criticized her volte-face, but the trip shored up her support at home. As supporters rallied to her side, billboards sprang up across Myanmar proclaiming, “We stand with Daw Aung San Suu Kyi.”
With the spectacle of Myanmar at The Hague, it’s little surprise that the free association between Myanmar and the Rohingya comes easily in Turkey. Yet the Turkish government is no stranger to the Rohingya issue. In 2017, Turkey’s President, Recep Tayyip Erdoğan, denounced the Myanmar military, describing their actions in Rakhine State as genocide. Subsequently, Turkey’s First Lady, Emine Erdogan; Foreign Minister, Mevlüt Çavuşoğlu; and Prime Minister, Binali Yıldırım, all visited the camps in Bangladesh to raise awareness and support Turkish aid agencies, which remain active in the camps. Turkey also sponsored a resolution at the U.N. General Assembly’s Human Rights Committee in 2018, on behalf of the Organization of Islamic Cooperation (OIC) and the European Union. The resolution condemns the atrocities committed against the Rohingya in Myanmar, calling the issue a matter of deep concern for the international community.
While the Turkish government’s response is surely welcome, one need not be over-generous in praise. The response, not purely altruistic, fits a wider strategic aim: of establishing Turkey as the hegemonic patron of Muslims worldwide — a strategy that invokes and seeks to restore the imperial grandeur of Ottoman pasts.
When asked to address Rohingya issues in Turkey, I have tried to navigate a few positions carefully and with respect. On one hand, I share the outrage of many of my friends and colleagues not only at the extreme acts of violence committed against Rohingya people, but also at the domestic impunity the Myanmar military continues to enjoy. The logic of an international legal strategy is clear. The Myanmar legal system, despite Suu Kyi’s claims to the contrary at The Hague, appears unable or unwilling to hold the Myanmar military to account. On the other hand, I maintain serious reservations over too great a reliance on international legal mechanisms in seeking justice for Rohingya people. Two sets of concerns stand out.
First, the colonial origins of international law are undeniable — a historical argument, yet one that bears upon the present. In his landmark work, Imperialism, Sovereignty, and the Making of International Law, Antony Anghie shows how international law came into being as a mode of organizing and legitimating European plunder of the colonized world. Non-European people, far from being peripheral to the making of international law, were the prime object it sought to govern through notions of cultural difference and a civilizing mission. Sovereignty itself, moreover, did not precede and extend through the colonial encounter; it is a historical artefact forged in that encounter.
These facts shape the present. Anghie suggests that international law’s colonial origins help explain its enduring illegitimacy, even its inefficacy, in much of the world today. He also observes how international law not only organized colonial exploitation, but also proved adept at forestalling claims for colonial reparations. It maintains a civilizing mission even now, centering Europe in a dramatis personae populated mainly by victims, savages, and saviors. If colonialism refers to territorial control, and imperialism to political and/or economic control — formally or informally — then imperialism describes the actions of major powers in the period following the end of colonialism as such. International law remains, precisely, a technique of imperial power, extending political control from the Northern metropole over former colonial territories. The debates occasioned by the humanitarian intervention in Libya are an object study in how international law remains bound up with problems of imperialism today.
If the first concern appears too abstract, the second set of concerns are more practical. How effective is international law, and how much of the strategic terrain should it occupy? In January, following the spectacle at The Hague, the BBC reported that the ICJ “has ordered measures to prevent the genocide of Rohingya Muslims.” In fact, however, the same article makes clear that what the ICJ has actually done — all that it can do, currently — is call on the Myanmar government to take “all measures within its power” to prevent genocide, and report back in four months on implementation. To a government that stands accused of committing genocide, the ICJ has thus politely requested they stop committing genocide. One marvels at the wonders of international law.
Still, the symbolic value of the ICJ’s ruling is a different matter and should not be underestimated. Reports abounded of Rohingya people in the camps and in the diaspora feeling an important sense of legitimation from the ICJ process. Yet if, as seems likely, the ruling does little to affect the extreme material difficulties Rohingya people face daily in Bangladesh and Myanmar, a deepening sense of despair might not be long to follow. In which case, certain questions would arise: how much time and resources have been spent on an elaborate international legal strategy, and how better could they have been used? These questions, perhaps, are already pertinent.
Anecdotally, reports from the camps suggest mounting frustration with international advocacy strategies — centered around international law, on one hand, and identifying and elevating Rohingya civil society leaders, mainly in the diaspora, on the other. A friend working in the camps described a dawning sense among Rohingya people that, contra the abstractions of international legal principles or the elitism of civil society strategies, energies might better be directed more horizontally: towards attending to and strengthening their own communities by forming smaller CBOs (community-based organizations) in camp. Literacy, culture, sports, more grounded forms of advocacy, even helping people read the date on their rations cards — these could be some directions for a qualitatively different set of focuses. As for the international community, the same friend worries the ICJ process has made it easier not to address the Rohingya issue more seriously. Embassies, U.N. agencies, donors, INGOs, and companies can all sidestep the ongoing crisis by pointing to the ICJ while business as usual continues.
A colleague who works in Sudan shares my concerns over international legal strategies. When I told him last year I was stuck between two positions — anger at the atrocities against the Rohingya, and political reservations over appeals to international law — he told me the best response is to look to Sudanese revolutionaries. After the overthrow of Omar al-Bashir in April 2019, it was only hours before the International Criminal Court (ICC) demanded he be turned over. Sudan’s revolutionaries refused. They insisted, in effect, that he must be theirs to put on trial.
Since then, however, their position has softened. The difficulties of trying Bashir in Sudan became clearer, not least the concern that the military would turn on those who turned on Bashir, jeopardizing the broader shift to a civilian government. Outsourcing the trial became more attractive. Prime Minister Abdalla Hamdok recently confirmed the Sudanese government will cooperate with the ICC in order to try Bashir, who has remained in prison in Khartoum. Some in Sudan continue to argue he should be prosecuted within the Sudanese legal system. Others envision a hybrid court mixing judges from Sudan and the ICC with some participation by the African Union. Regardless, serious doubts over international legal mechanisms remain.
The Financial Times, meanwhile, tried to draw an analogy between Myanmar and Sudan, arguing that Sudan risks falling into the “Myanmar trap”: the replacement of one military regime by another, albeit in better camouflage. The problem is real enough, but the FT gets the dynamics wrong. For them, a lack of accountability for Myanmar’s military is at the root of Myanmar’s failed transition, wherein the military retains control over parliament and key ministries.
Yet the military’s staying power depends on far more than weak domestic accountability mechanisms. Its economic stature, cultivated through not in spite of economic liberalization since the 1990s, underwrites its enduring political power — as Stephen Campbell and I argue here. And if the popular response to Myanmar’s ICJ trial is any indication, the pursuit of “international accountability” stands to bolster, not weaken, the position of Myanmar’s military as nationalist subjects close ranks around a defense of national sovereignty. If there is a Myanmar trap for Sudan to avoid, it may very well be the trap of relying on international legal strategies to outsource the pursuit of justice.
Last December at Middle East Technical University (METU) in Ankara, I tried to explain some of this to a student who asked about the trial at The Hague. I’m not sure how much really came across. But I also tried to point out — as I have discussed elsewhere — some of the deeper issues in play: that Suu Kyi, rather than abandoning her liberal principles, instead signals the long historical intimacy between liberalism and mass violence, from the colony to the plantation to America’s wars in the Middle East; that capital accumulation in Rakhine State is more than incidental to the violent expulsion of so many Rohingyas; and that attachments to outdated constructs of nation, race, and ethnicity have led some Western scholars to agree, with Myanmar’s genocidaires, that “Rohingya” names only a false or artificial category of identity.
No doubt, there are many layers to the ongoing Rohingya crisis — including, now, international law, as the ICJ process continues. After four months passed following the ICJ’s provisional ruling, Myanmar submitted its first report on its efforts to prevent genocide. Subsequent reports will follow at six-month intervals. The contents of the reports will remain confidential, but observers say little if anything has changed thus far. “No progress at all,” said Yanghee Lee, the former UN Special Rapporteur on the human rights situation in Myanmar, at a Global Justice Center webinar. Meanwhile, a separate conflict has broken out in Rakhine State between the Myanmar military and the Arakan Army, which draws its recruits from Rakhine Buddhists. The conflict makes it even less likely that the Myanmar government will devote resources and attention to developing long-term solutions for Rohingya people in Rakhine State. All in all, it is difficult to be optimistic about the ICJ process.
Myanmar’s appearance at The Hague has certainly heightened the visibility of Myanmar in Turkey. Lately, I’ve had to resort less and less to that vague geographic designation. “Myanmar? Well, it’s between India and Thailand.” More often, I’ve found myself confronted with international law, and attempting to convey these hesitations. For if there exists a place for international law in the struggle for Rohingya justice, that struggle need not, must not, end there.
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