Will Aung San Suu Kyi face genocide charges over Rohingya crisis?
United Nations human rights chief Zeid Ra’ad Al Hussein, speaking to the BBC from the UN headquarters in Geneva, recently said he was not ruling out the possibility of genocide charges levied against Myanmar’s de facto leader and democratic icon Aung San Suu Kyi or the army chief Min Aung Hlaing.
He said: “Given the scale of the military operation, clearly these would have to be decisions taken at a high level [as the thresholds for proof were high]." He would not be surprised if Myanmar leaders were one day held accountable at an international court.
The UN rights chief added that even before the August-end resurgence of violence, he had personally called on Aung San Suu Kyi to intervene to bring these military operations to an end. “I appealed to her emotional standing… to do whatever she could to bring this to a close, and to my great regret it did not seem to happen.”
According to international medical aid group, Doctors Without Borders, its field survey has revealed that 6,700 Rohingyas were killed in the military crackdown from August to September 2017.
The UN refugee agency (UNHCR) in Dhaka has reported in the first week of December that Rohingyas have continued to flee Myanmar, even after Naypyidaw and Dhaka last month agreed upon a timetable for their return home in Rakhine state. International rights watchdog Human Rights Watch has reported that as late as December 2, there was evidence that Rohingya villages were still being damaged, contradicting Myanmar government’s assurances that violence had ceased before it signed the agreement with Bangladesh to start the repatriation process from January 2018.
This has caused concern to international observers since continued violence could lead to radicalisation of the Rohingya refugee population in Bangladesh and their counter-attacks on the Myanmar military could worsen the situation.
However, Myanmar leaders do not appear to be serious in responding to international concerns over the future of over six-and-a-half lakh Rohingya refugees which is causing heavy social and economic burden on Bangladesh. This was evident in Naypyidaw’s refusal to issue a visa to UN special rapporteur Yanghee Lee, who was to visit Myanmar in January 2018 to find out procedures in place for the return of refugees and investigate increased fighting in Myanmar’s Kachin and Northern Shan areas.
Commenting on Myanmar’s refusal, Lee said, “They have said that they have nothing to hide, but their lack of cooperation with my mandate and the fact-finding mission suggests otherwise.” She added that she was disappointed, as Myanmar’s representative at Geneva Htin Lynn had told the UN Human Rights Council that they would cooperate.
The Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) was adopted by the UN General Assembly (Resolution 260) in December 1948 and came into force on January 12, 1951. Till December 2017, 149 states have ratified or acceded to the treaty. Myanmar (then Burma) acceded to the genocide convention treaty on December 30, 1949 and ratified on March 14, 1956. So, Myanmar is obliged to take action in letter and spirit against genocide both in times of war and peace in accordance with the Genocide Convention.
The convention defines genocide as "acts committed with intent to destroy, in the whole or in part, a national, ethnic, racial or religious group". It was based on internationally recognised definition of genocide incorporated in the criminal legislation of many countries and also adopted by the Rome Statute of International Criminal Court that established the International Criminal Court (ICC).
According to the definition, acts such as killing members of the group, causing serious bodily harm or harm to mental health to members of the group, deliberately inflicting acts calculated to bring about physical destruction of the whole group or in part, imposing measures intended to prevent births within the group and forcibly transferring children of the group to another group would constitute genocide.
However, the military junta, which came to power in 1962, never bothered about international treaty obligations. Its operations against Communist and over a dozen non-Bamar ethnic insurgent groups were notorious for gross human rights violations bordering on genocide.
In fact, the military junta, which ruled Myanmar till the 2008 constitution was enforced, had systematically worked to curtail the rights of indigenous population and Burmanise them.
The seven judges of the Rome-based International Peoples Tribunal, after holding hearings on the Rohingya issue in London and Kuala Lumpur in September 2017, have held that Myanmar was fully responsible for genocide against the Rohingya people. The tribunal judgment was based on witness testimonials both in person and over videos, as well as a long list of well documented atrocities including systematic rape, murder and eradication of identity and culture, presented by a team of prosecution lawyers.
But the moot question is, can Aung San Suu Kyi and the Myanmar Army chief be charged for genocide as suggested by the UN Human Rights Chief?
Aung San Suu Kyi, the de-facto head of state, is holding the extra constitutional appointment of state counsellor specially created for her. Officially, only the foreign ministry is under her direct control. So, her status as head of state exists only as long as the army accepts it. As only the army controls the ministries of defence, border affairs and internal security as per the 2008 Constitution, it is doubtful whether she can be successfully prosecuted for genocide by the international tribunal.
This was not the first time Rohingya issue had drawn the attention of the world body; in the past collective UN action was decided more on considerations of real-politick than on humanitarian needs. So, UN’s punitive action against Myanmar over its conduct on the Rohingya issue will continue to be inconclusive and lukewarm because Myanmar is seen as critical to China’s growing influence in South and Southeast Asia.
The plight of Rohingyas is closely tied to the lack of full-fledged democracy in Myanmar. Unless the country’s 2008 Constitution is amended to abolish the reservation of one fourth of the seats in the legislatures for the army, its stranglehold on governance will continue. Under the circumstances, the plight of Rohingyas is likely to continue despite the loud global rhetoric on the issue.