Behind Myanmar’s Military Alibi: A Path for Compliance with the ICJ’s Order to Protect Rohingya

In the wake of the ruling from the International Court of Justice (ICJ) ordering Myanmar to prevent genocide against the Rohingya going forward, the initial excitement was tempered by pragmatics—how this important court order can be enforced so that it actually protects the 600,000 Rohingya who remain in Rakhine State.

To be sure, there is no confusion that these measures are binding—as the court noted, they create international legal obligations that require Myanmar’s compliance. But how can the international community guarantee that Myanmar actually does anything? And does Myanmar’s civilian government have the capacity to do what is needed?

The answers to these questions are mixed, generally relying on exertion of geopolitical pressure, including through the United Nations Security Council, to which the order has been transmitted. As a general rule and absent a concrete enforcement mechanism, ICJ orders have a reliable compliance rate. However, looking at the Myanmar case in context, and in particular the measures requiring prevention of the commission of genocide by Myanmar’s military, compliance will require a serious and concerted effort by both the international community and the civilian government.

This is because Myanmar’s constitution sets the military apart from, and largely independent of, the civilian government. This disunion is recognized in a statement responding to the order from the spokesperson for the National League for Democracy, the political party that controls the government: “Under the current political circumstances, we have difficulties solving some issues – such as the (order) that the government must ensure its military or armed insurgents do not commit genocide or attempt to commit genocide against Rohingya or Bengali.”

Importantly, international law is wholly unconcerned about internal laws that may impede compliance with treaty obligations. However, as it relates to Myanmar, anyone who will be seeking strategies to ensure compliance with the ICJ’s provisional measures order will have to grapple with the internal structure of the state.

Military Supremacy and Autonomy

Myanmar has a long history of military control. From 1962 to 2011, Myanmar (then “Burma”) was ruled by a military junta that brutally repressed citizens’ rights and crushed dissent, especially in ethnic areas. The junta committed rampant human rights abuses and denied basic human rights and political freedoms, while relying on indiscriminate and open-ended detention to punish dissent. Despite extensive rights violations, including systematic sexual violence against women from ethnic minorities, the military enjoyed total impunity for its actions. In 2007, the junta instituted a process of reform as part of a carefully orchestrated plan to continue military rule under the guise of democracy. As part of this transition, the drafters of a new constitution embedded extensive legal structures to guarantee military supremacy and autonomy.

Under the 2008 Constitution, the military is an autonomous entity that participates in the “[n]ational political leadership” role of the state. In particular, its scope of responsibility extends to “safeguarding the non-discrimination of the Union, the non-disintegration of National solidarity and the perpetuation of sovereignty.” Critically, the Constitution does not give any branch of civilian government (consisting of the legislative, executive, and judicial branches) oversight over the military or military-controlled territories.

In addition to setting the military outside and above the civilian government, the constitution also grants blanket immunity to military personnel. Specifically, Article 445 of the constitution guarantees that no proceeding shall be instituted against any member of the government “in respect to any act done in the execution of their respective duties.”

The constitution further entrenches impunity by granting the military autonomy over all its own judicial processes and giving the Commander-in-Chief “final and conclusive” authority over all cases and complaints, allowing him to overturn convictions or commute sentences on a whim. Therefore, all serious human rights violations committed by the military fall under the jurisdiction of a totally military-controlled judicial system without any input from the civilian government, including the judiciary.

This is the system touted by Aung San Suu Kyi during the ICJ hearings, and Myanmar’s Independent Commission of Enquiry (ICOE) placed great reliance on that system in its conclusions. However, for a myriad of reasons, including those described above, the U.N. Independent International Fact-Finding Mission on Myanmar (FFM) has been clear that the military justice system is an inadequate forum to prosecute large-scale human rights abuses. The FFM ultimately concluded that “accountability at the domestic level is currently unattainable.”

Impunity for Sexual- and Gender-Based Violence

An example of both the military’s autonomy from civilian government oversight and independence in matters of justice is the impunity with which the military has long committed sexual and gender-based violence against ethnic women.

In the earlier words of State Counsellor Aung San Suu Kyi in 2012, “Rape is used in my country as a weapon against those who only want to live in peace, who only want to assert their basic human rights. It is used as a weapon by armed forces to intimidate the ethnic nationalities and to divide our country.”

Indeed, the FFM found that sexual violence is a hallmark of the Myanmar military’s operations. Rape and other forms of sexual violence were part of a deliberate strategy to intimidate, terrorize, and punish a civilian population. Foot-soldiers and officers alike have for decades been responsible for abductions, rapes and gang rape, sexual torture, sexual slavery, and other forms of sexual and gender-based violence.

These violations, for the most part perpetrated against ethnic women and girls and often resulting in death or serious permanent injury, are used to intimidate, terrorize, and punish Myanmar’s ethnic populations. The scale, brutality, and targeted perpetration of sexual violence and rape demonstrate high levels of military planning and coordination.

Yet prosecutions for rape and sexual violence as an international crime inside Myanmar are unheard of. As noted by the FFM, to date no senior Tatmadaw officer has been held accountable for the widespread sexual and gender-based violence committed against the Rohingya during the 2016 and 2017 “clearance operations.”

This impunity can’t be blamed on a lack of attention. Allegations of widespread sexual violence by the Myanmar military go back decades. In 2007, the U.N. Special Rapporteur on the situation of human rights in Myanmar stated, “the failure to investigate, prosecute and punish those responsible for rape and sexual violence has contributed to an environment conducive to the perpetuation of violence against women and girls in Myanmar.” Sexual violence in Myanmar has been mentioned in every report the U.N. Secretary-General has written on conflict-related sexual violence. Women’s civil society groups, such as the Women’s League of Burma, have been tirelessly documenting and reporting on military-orchestrated rape campaigns for years.

Still, as the genocidal rape campaign against the Rohingya proved, the problem persists. Put simply, it persists because the civilian government is unwilling and unable to deter the military with punitive oversight.

A Compliance Challenge – But Not Insurmountable

Turning back to the ICJ’s provisional measures requiring Myanmar to prevent genocidal acts, if the military decided today to restart its campaign of systematic rape of Rohingya women, girls, men, and transgender persons, its lack of accountability to the civilian government presents a significant, but not insurmountable, challenge for compliance.

While the civilian government of Myanmar often hides behind military autonomy as a shield against criticism, as it has in the ICJ case, it is not without the power to take steps to protect the Rohingya. As a starting point, there are a range of legislative reforms within its power that do not require the support of the military block in Parliament, including reforming the 1982 Citizenship Law. The law is at the center of the deprivation of legal protections for the Rohingya, and reforms could go a long way to showing the court that Myanmar is taking “concrete measures aimed specifically at recognizing and ensuring the right of the Rohingya to exist as a protected group under the Genocide Convention.”

Myanmar also could take steps to show that the joint communiqué it signed with the U.N. on prevention and response to conflict-related sexual violence is more than a PR effort. The government could implement the commitments in it, including by passing a law on violence against women and ensuring that perpetrators of sexual violence are excluded from amnesty.

Such reforms should also target a constitutional amendment process that seeks to limit the military’s autonomy and role in the civilian institutions—a process the international community should have insisted upon starting in 2011. Amendments recently introduced in Myanmar’s Parliament by the Charter Amendment Committee to reduce the military bloc in Parliament and remove the military’s veto over constitutional amendments are a start. While these measures don’t have the support of the military, consistent efforts and progress towards this goal by the civilian government could demonstrate that Myanmar is taking at least some measures to exert authority.

In addition, the ICJ decision makes a clear link between actions to punish perpetrators and preventing genocide. Specifically, the court recognized that punishment has a deterrent effect and therefore can also be deemed as an action to prevent genocide. This gives a path forward—through meaningful accountability efforts—for Myanmar to comply with the court’s provisional measures order.

Use International Accountability Processes

As the FFM has made clear, current efforts at the domestic level are, without the aforementioned constitutional and other reforms, not a path to accountability for the crimes committed against the Rohingya. This is precisely the type of situation in which international accountability processes can be used to break the cycle of impunity.

While Aung San Suu Kyi and the civilian government have demonstrated a hostility towards nearly all international processes, cooperation and engagement with these mechanisms could be key to bringing the military under the government’s control. It is the civilian government that has denied access to the international accountability bodies and human rights experts, including the FFM. And thus it is the civilian government that could choose to grant them — including the Special Rapporteur on Myanmar, the Independent Investigative Mechanism for Myanmar, and the Office of the Prosecutor of the International Criminal Court — unimpeded access to the country, including Rakhine State.

Myanmar further could heed the criticisms of the ICOE and commit itself to working with international actors towards a genuine fact-finding and accountability process. Myanmar could even ratify the Rome Statute of the ICC and grant the court retroactive jurisdiction to the date of its entry into force, July 1, 2002.

In the days following the ICJ’s provisional measures order, attention has largely been focused on what the international community can do to ensure that Myanmar complies. However, it is equally important to grapple with the specifics of Myanmar’s unique governmental structure to identify the pathways for Myanmar itself to comply, while not allowing it to hide behind the military for its lack of progress.

Keeping these steps in mind, it is incumbent on the international community to use the tools within its power to hold Myanmar to a high standard as to what compliance means. After all, an order of provisional measures is not by itself sufficient to protect the Rohingya—in Bosnia, the Srebrenica genocide occurred two years after the court ordered provisional measures. The same cannot be allowed to happen here.

Image: One of the representatives of the Rohingya group greets Gambian Justice Minister Abubacarr Tambadou at the International Court Of Justice on Jan. 23, 2020, in The Hague, Netherlands. As part of the case filed by the Republic of the Gambia against Myanmar for the crimes of genocide committed against the Rohingya group, the session of the ICJ was held to indicate what interim measures should be applied. (Photo by Nacho Calonge/Getty Images)

 

About the Author(s)

Grant Shubin

Legal Director at The Global Justice Center. Follow him on Twitter (@Grant_GJC)

Akila Radhakrishnan

President of the Global Justice Center, where she directs GJC’s work to establish legal precedents protecting human rights and ensuring gender equality. Follow her on Twitter (@akilaGJC)