December 11, 2019

Most national capitals are accused of being out of touch but few are actually designed to be. Myanmar’s capital, Naypyidaw, is. Official buildings are scattered across former scrubland, each separated from the next by a distance that is too far to walk in the midday sun. Parliament is surrounded by a giant moat and special permission is required to visit. The discussions inside its 31 buildings — one for each plane of existence in Theravada Buddhist cosmology — bear only the slimmest connections to the world beyond its boundary fence.

Under the current constitution, one quarter of parliament’s members are military officers, and the constitution cannot be changed unless more than three quarters of MPs vote in favour. The constitution also says the ministers of defence, home affairs and border affairs must be serving military officers, and it gives the head of the armed forces the right to take over the country in a state of emergency. The army has the country in a headlock.

These are all things that Myanmar’s de facto civilian leader, Aung San Suu Kyi, wants to address; but discussions are going nowhere. Four years after her party, the National League for Democracy, won an election landslide, and with less than a year to go before the next national vote, there is little sign of change. Meanwhile the rest of the country is growing frustrated and angry at the amount of time devoted to constitutional change while so many day-to-day problems remain unaddressed.

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This political stalemate is key to understanding why Aung San Suu Kyi has so conspicuously failed to address what the rest of the world regards as the country’s key crisis: the military’s crimes against its Muslim Rohingya minority. Suu Kyi believes the only way she can persuade the army to relax its grip on politics is to stand steadfastly with them in the court of public opinion. This week she also stood with them in the International Court of Justice, where the country is facing charges of genocide.

The case has been brought by Gambia on behalf of the 57 members of the Organisation of the Islamic Conference (OIC). It is not a whimsical venture: Gambia has brought some of the world’s top lawyers to The Hague. Its minister of justice, Ba Tambadou, was formerly a prosecutor at the Rwanda war crimes tribunal and Gambia has hired the Washington firm Foley Hoag as its advisors. The company won famous victories for Nicaragua against the United States in 1986 and for the Philippines against China in 2016. ‘Rockstar’ counsel Philippe Sands is acting for Gambia in court.

That the Myanmar military — the Tatmadaw — has committed massive human rights violations over decades is beyond doubt. The abuses peaked around August 2017 during a massive security operation in the north-western part of Rakhine state. Amnesty International estimates that around 10,000 civilians were killed. Over 700,000 Rohingya Muslims were expelled to Bangladesh in what the former United Nations High Commissioner for Human Rights called a “textbook example of ethnic cleansing”.

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Proving genocide, however, is notoriously difficult. The 1948 UN Genocide Convention defines it as an “act committed with intent to destroy in whole or in part a national, ethnic, racial or religious group”. Despite all the horrors, it is not clear that the Tatmadaw were intent on destroying all Rohingya. As Amnesty itself has demonstrated, the military operation was limited to the area of Rakhine between the Mayu River and the border with Bangladesh. Rohingya communities in other parts of Rakhine state were not targeted in anything like the same ways.

What the ICJ case may achieve is a rapid ruling on ‘emergency measures’ to protect the Rohingya while the merits of the case are awaiting judgement. Such a ruling would be legally binding, but there must be considerable doubt about whether the Myanmar military would actually obey it. And if it ignores the ruling, will other countries be willing and able to put meaningful pressure on the government in Naypidaw to force it to comply?

Over the past two and a half years of the current Rohingya crisis, Myanmar’s neighbours have demonstrated extreme reluctance to pressure Aung San Suu Kyi over the Tatmadaw’s behaviour. The reason is simple: China. China has made clear that it will not sanction Myanmar for the security forces’ behaviour in Rakhine – or in any of its other insurgencies. Chinese diplomats have actively sought to protect Myanmar from criticism at the United Nations Security Council and elsewhere.

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If Myanmar’s largest trading partner won’t support sanctions, then there seems little point in others imposing them. India sees itself locked in a zero-sum game with China for influence in Southeast Asia, so it is very unlikely to support punitive measures. Myanmar’s Southeast Asian neighbours are committed to the principle of non-interference in each other’s affairs, so they will continue to take a hands-off approach. General sanctions on the country as a whole seem unlikely to win sufficient support to make them effective.

It seems likely that, for the foreseeable future, the 740,000 expelled Rohingya and their descendants will continue to fester in the world’s largest refugee camp, built on sand dunes and mudflats on the Bangladesh side of the border. At the same time, that part of the Muslim Rohingya population that was not expelled from Rakhine will continue to exist under an extreme form of apartheid: corralled into camps, prevented from living their regular lives and subjected to daily abuse.

Is there a way forward? Is there any way to convince the Myanmar government to accept the Rohingya as an equal part of the population, deserving of rights and fair treatment? There have been mass expulsions of Rohingya before: in 1978 and in 1991. In both those cases the Myanmar/Burmese authorities were persuaded to reverse the expulsions. However, the critical factor then was a threat from Bangladesh to arm the refugees if they were not allowed to return. These days governments are more wary of supplying weapons to Muslim militants and that option does not seem to be part of the current discussions.

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This week the United States imposed targeted financial sanctions on four senior military figures: the Tatmadaw commander-in chief, Min Aung Hlaing, his deputy and the commanders of the two Light Infantry Divisions, the 33rd and 99th, that committed the vast majority of the killings and abuses in Rakhine. Even if the EU follows suit, however, it is unlikely that these measures will do more than annoy the generals.

It seems that the liberal West is out of tools. Perhaps Myanmar is a harbinger of things to come. The rise of China is giving authoritarian governments new options: they no longer need to kowtow before the arbiters of human rights standards. Will the 57 member states of the OIC succeed with their legal case where the trans-Atlantic powers have so far failed? It seems unlikely.

Instead, it seems that we’re moving into a world where state sovereignty comes first and governments will be able to do what they want to their minorities. Chinese ideologues have a name for it: ‘the community of common destiny for mankind’. The rest of us will just have to get used to sitting idly by while atrocities go unpunished.

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