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Counting the Costs: Myanmar’s Problematic Census
Counting the Costs: Myanmar’s Problematic Census
Table of Contents
  1. Overview
Myanmar at the International Court of Justice
Myanmar at the International Court of Justice
Briefing 144 / Asia

Counting the Costs: Myanmar’s Problematic Census

Myanmar’s controversial census has inflamed ethnic tensions at a critical moment in the peace process. Releasing the data will require great political sensitivity to avoid further violence, all the more so with elections scheduled for 2015.

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I. Overview

Myanmar’s first census in over 30 years, an ambitious project conducted in April 2014 with technical advice from the UN and significant funding from bilateral donors, has proved to be highly controversial and deeply divisive. A process that was largely blind to the political and conflict risks has inflamed ethnic and religious tensions in this diverse country. The release of the inevitably controversial results in the coming months will have to be handled with great sensitivity if further dangers are to be minimised.

The census will provide information vital for Myanmar’s government, development partners and investors in planning their activities. But it has also created political tensions and sparked conflict at a crucial moment in the country’s transition and peace process. Some controversies are inevitable in any census. However, the way that the process has been designed and prepared, insufficiently sensitive to the country’s evolving realities and the major risks that they present, has greatly exacerbated its negative impact.

Such problems were not inevitable, nor were they unforeseen. They largely stem from the way data on ethnicity, religion and citizenship status are being collected and classified, and the lack of consultation with key constituencies in the design of the process. The serious risks involved were anticipated and clearly laid out in the political risk assessment that the UN Population Fund (UNFPA) – the lead technical agency involved – commissioned at the beginning of the process, and they were subsequently repeated and amplified by many other stakeholders and observers, including Crisis Group. However, UNFPA rejected such concerns, consistently presented a panglossian perspective on the census and failed to acknowledge specific political or conflict risks.

Key census donors failed to recommend fundamental revisions to the process, even when a census pilot had to be cancelled in Rakhine State due to fears of violence and when key ethnic armed groups called for the enumeration to be postponed. Only at the last minute, when a Rakhine census boycott morphed into violent attacks on international aid agencies that sparked a humanitarian crisis, did most push for such changes.

The impact of these problems has been far-reaching, exacerbating inter-ethnic and inter-religious tensions. The census has been interrupted in parts of Rakhine State, following a last-minute government decision to prevent the Rohingya population from self-identifying its ethnicity – a move intended to placate Rakhine radicals, who were committed to a boycott and could have unleashed deadly violence. Amid a massive and intimidatory security operation in Rohingya communities, those households who insisted on identifying as such – the great majority in many areas – were left out of the census entirely. In Kachin State, no census has been allowed to take place in areas controlled by the Kachin Independence Organisation armed group, due in part to concerns about how ethnicity data are being collected. The Myanmar military has been used to secure contested areas in Kachin and northern Shan States in order to allow access to census enumerators. In the process, serious clashes have broken out between the two sides, and hundreds of civilians have had to flee. This has put further strain on the peace process at a critical time.

Without doubt, the government has been found wanting in its approach to addressing the communal tensions that have proved so threatening to Myanmar’s Muslim community and particularly its Rohingya population. These problems pre-date talk of a census. The authorities, through their public statements, the behaviour of law enforcement personnel and in the laws enacted have to do a lot more to demonstrate that the state’s concern is for the welfare of all. Equally, a census that was more sensitive to political realities, or one conducted at a less volatile time, could have limited or avoided some of the problems now being stoked. Further risks exist in the timing and manner in which census data are released. These will not be easy to mitigate at this point, and UNFPA and the donors will have much less influence now that the most technically demanding and costly aspects of the process have been completed.

Rather than accept their share of responsibility for designing and pushing ahead with a flawed process in the face of clear warnings from multiple quarters, UNFPA and key census donors have sought to shift the blame wholly onto the government. They have criticised its last-minute decision to deny Rohingya the right to self-identify, while failing to acknowledge that by pushing it not to amend or postpone the process earlier on, they left the government in a difficult position with few good options to avoid violence. The narrative that is thereby being presented – that the process was going well until the government’s last-minute volte-face – is inaccurate and in the circumstances unhelpful.

Yangon/Brussels, 15 May 2014

A billboard depicting Myanmar State Counsellor Aung San Su Kyi with the three military ministers in front of a background showing the building of the International Court of Justice in The Hague is displayed along a main road in Hpa-an, Karen State. AFP
Q&A / Asia

Myanmar at the International Court of Justice

On 10 December, the International Court of Justice convened to hear an opening request in a genocide case filed against Myanmar for its atrocities against Rohingya Muslims. In this Q&A, Crisis Group expert Richard Horsey looks at the legal and diplomatic stakes of these proceedings.

Why is Myanmar before the International Court of Justice?

The Gambia has lodged a case against Myanmar at the International Court of Justice (ICJ), the principal UN judicial body based in The Hague, alleging violations of the Convention on the Prevention and Punishment of the Crime of Genocide (usually known as the Genocide Convention) in Myanmar’s treatment of ethnic Rohingya Muslims. The charges stem from atrocities committed by Myanmar’s security forces in northern Rakhine State, which have forced over 700,000 Rohingya to flee to Bangladesh since August 2017. The Gambia, relying on the Convention’s provision that the ICJ can adjudicate disputes over such charges, brought this case on behalf of the 57-member Organisation of Islamic Cooperation. The allegations against Myanmar include responsibility for genocidal acts against the Rohingya and failure to prevent and punish genocide, among others.

The Gambia has also asked the ICJ to order “provisional measures”, the equivalent of an injunction in domestic law, authorising steps to protect the parties’ rights pending the case’s final adjudication. Hearings at the court from 10-12 December – at which Aung San Suu Kyi will represent Myanmar – are dealing with this request for provisional measures. Both The Gambia and Myanmar have retained top international lawyers as counsel.

The allegations against Myanmar include responsibility for genocidal acts against the Rohingya and failure to prevent and punish genocide, among others.

Two other countries – the Netherlands and Canada – have indicated that they will support The Gambia’s case. They have called on all state parties to the Genocide Convention to do the same. One possibility is that the Netherlands and Canada will become “intervening states”, a status that would give them access to court documents and the right to participate in oral proceedings, without being formal parties to the dispute.

A decision on provisional measures is expected within weeks. But the case itself will probably be long and convoluted, with the court taking years to render its final decision. The diplomatic and reputational impact is thus likely to be most immediate and consequential.

Why is Aung San Suu Kyi, Myanmar’s top civilian leader, speaking at the ICJ hearing this week and what does she hope to achieve?

In addition to a legal team, states involved in ICJ cases must nominate an “agent” empowered to represent the state and make commitments on its behalf. Aung San Suu Kyi is Myanmar’s agent, in her capacity as foreign minister (she also holds the title of state counsellor). A justice minister or an attorney general normally plays this role; it is extremely rare for a political figure of her prominence to do so. Aung San Suu Kyi likely feels that as the country’s de facto leader she has the primary responsibility to respond to The Gambia’s claims, and also that she is the person best qualified to do so – given her fluent English and experience on the world stage.

Aung San Suu Kyi’s public statements over the last two years, and what she is known to have said in private, suggest that she believes no genocide has occurred in the Rohingya case. She thinks that, on the contrary, the outside world has deeply misunderstood and exaggerated the Rohingya crisis. She no doubt intends to use the legal setting in The Hague to try to set the record straight. She also no doubt understands that the eyes of the world will be on her at this pivotal moment for Myanmar. The global audience – particularly in the West – will expect her to go much farther than she has in previous speeches in acknowledging the security forces’ wrongdoing and committing to address it. It remains to be seen how far she will go in this direction.

What impact will Aung San Suu Kyi’s appearance in The Hague have within Myanmar?

Views on the Rohingya crisis inside Myanmar are almost diametrically opposed to those outside the country. The near ubiquitous narrative in the country – coming from its leaders and promulgated by the local media – is that the outside world misunderstands what has happened with the Rohingya. Myanmar thinks that its primary problem is therefore one of communication: how to explain the “real situation” more clearly and effectively.

Since The Gambia filed the ICJ case on 11 November, and Aung San Suu Kyi decided to represent Myanmar personally in The Hague, a wave of nationalist fervour has swept the country. Billboards and mass rallies endorse her mission at the ICJ; even the military – her nemesis during fifteen years of house arrest – is giving her its unequivocal backing. The civilian government is likewise soliciting vocal support from the people for the state counsellor’s defence of the nation. President Win Myint’s wife even conducted a ritual at Aung San Suu Kyi’s “eternal peace pagoda” in Naypyitaw, invoking the spirits to confer success on her efforts.

Since [...] Aung San Suu Kyi decided to represent Myanmar personally in The Hague, a wave of nationalist fervour has swept the country.

This outpouring of support will play well for Aung San Suu Kyi’s National League for Democracy in the November 2020 elections, though electoral advantage is unlikely to be her primary motivation. Her stance for Myanmar in The Hague could also lead to a slight thaw in the chilly relations between the civilian government and the military. But the risk is that unleashing the forces of narrow nationalism will not only silence voices calling for human rights protections and greater tolerance for diversity in the country but also postpone any honest national reckoning with what happened to the Rohingya. Such an accounting is the only way that Myanmar can get out of its international legal and diplomatic predicament.

What impact will the ICJ case have on international perceptions of Myanmar?

A moment of truth is fast approaching. Part of Aung San Suu Kyi’s international audience at The Hague will consist of some Asian governments that are determined to maintain close bilateral ties with Naypyitaw. She might say enough to satisfy them, but she will have more difficulty meeting the expectations of Western governments. It is hard to imagine, moreover, given the documentation of the Rohingya’s plight, that she will convince the many sceptical observers in the global media and civil society that Myanmar’s state is misunderstood and unfairly maligned. In defending Myanmar as part of proceedings live-streamed worldwide, she will necessarily be defending the military against genocide charges. Anyone can easily compare the substance of this defence with the numerous third-party reports about why so many Rohingya fled northern Myanmar and how they are living stuck in Bangladesh. Anyone can also read about the Rohingya who continue to live in precarious circumstances at home. Myanmar could lose in the court of international public opinion well before the ICJ makes any legal ruling.