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Myanmar’s Military: Back to the Barracks?
Myanmar’s Military: Back to the Barracks?
Table of Contents
  1. Overview
Myanmar at the International Court of Justice
Myanmar at the International Court of Justice
Briefing 143 / Asia

Myanmar’s Military: Back to the Barracks?

It was Myanmar’s military that initiated the end of its own dictatorship; to advance stable reform, it needs to continue withdrawing from civilian life.

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I. Overview

Myanmar’s military, the Tatmadaw, has been the dominant institution in the country for most of its post-independence history. After decades of military rule, it began the shift to a semi-civilian government. A new generation of leaders in the military and in government pushed the transition far further and much faster than anyone could have imagined. Major questions remain, however, about the Tatmadaw’s intentions, its ongoing involvement in politics and the economy, and whether and within what timeframe it will accept to be brought under civilian control. Transforming from an all-powerful military to one that accepts democratic constraints on its power will be an enormous challenge.

The Tatmadaw’s institutional perspective is heavily influenced by its role in Myanmar’s anti-colonial struggle – the leaders of which founded the military – and its early post-independence experience. The new country was almost torn apart by communist insurrection in the centre and ethnic insurgency in the periphery. The early years of parliamentary democracy were characterised by factionalism and infighting, which many in the Tatmadaw saw as driven by self-serving politicians having little regard for the national interest. The upshot is that many in the military remain distrustful of civilian politics. This, together with fears about instability at a time of major political change, mean that the Tatmadaw is not yet ready to give up constitutional prerogatives that ensure, through guaranteed legislative representation, that it has a veto on changes to the charter, as well as control of key security ministries, among other things.

Those guarantees, far from entrenching stasis, are what have given the Tatmadaw the confidence to allow – and in many cases support – a major liberalisation of politics and the economy, even when many of the changes impact on its interests. Its proportion of the government budget has been significantly reduced, the huge military-owned conglomerates have lost lucrative monopolies and other economic privileges, and the Tatmadaw is subject to increasing scrutiny, including from the recently unshackled media, on issues such as land confiscation and the way it operates in ethnic areas.

Many observers have assumed that the Tatmadaw would be a spoiler on issues of key interest such as the peace process and economic reform. Yet, this has generally not been the case – although the military's actions in Kachin State, including current deadly clashes, have been deeply troubling. The Tatmadaw’s support for progress in these areas stems from its broader concerns about protecting Myanmar’s sovereignty and geo-strategic interests. Military leaders were deeply concerned in recent years by the country’s growing reliance on China, both politically and economically, and were worried about how they would be able to balance the influence of their giant neighbour. They were also concerned that Myanmar was falling farther and farther behind the rest of the region economically, to them almost as an existential threat. They understood that rebooting the economy and building strategic relationships to balance China required engagement with the West that would only be possible if there were fundamental political reforms, as well as internal peace.

The fact that this is a planned, top-down transition is one of the reasons why it has been relatively untumultuous and may prove to be a sustained opening of the country. Yet, there are many possible future scenarios. Tatmadaw backing for the transition is indispensible, but by no means unproblematic. It too must undergo major internal reforms, to modernise and professionalise, and to transform the practices and institutional culture that give rise to [CO1] abuses of civilians. More fundamentally, it will have to change how it is viewed by many ethnic communities, from the enemy to a national security force that defends the interests of all Myanmar’s peoples. The new doctrine that the Tatmadaw is reportedly preparing may seek to address some of these issues, but little is known about the process of drafting it, nor its content. Much more will need to be done to address the military’s legacy of abuse. If it can provide security for civilians rather than presenting a threat – as it has been more successful in doing, compared with the police, in its response to communal violence – its presence may even be welcomed.

The Tatmadaw’s constitutional prerogatives were no doubt critical in giving it the confidence to embark on this transition, and the commander-in-chief, Senior General Min Aung Hlaing, and key members of the political establishment have said that they will be gradually reduced. There is a strong possibility, however, that the military will want to preserve its political role longer than is healthy. If such undemocratic provisions are in place for anything more than a short transitional period, they risk becoming entrenched, which would be deeply damaging to the country’s future – by entrenching a political role for the Tatmadaw, leaving it permanently outside civilian control and able to privilege its institutional interests at the expense of the country.

Yangon/Brussels, 22 April 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.