Yangon, 10 December 2019. Copyright: Benedict Mette-Starke

Harmony ideology at The Hague: Myanmar before the International Court of Justice

In what ways can Laura Nader’s concept of “harmony ideology” (1990) help us shed light on an ongoing international legal dispute over genocide accusations? In her village ethnography from rural southern Mexico of the 1960s, Nader demonstrated that Talean Zapotec judges were “active in articulating a harmony model for dispute resolution” in order to prevent the Mexican government from interfering in the relative autonomy of their villages. Displays of harmony had originally been promoted by Spanish Christian missionaries and were eventually customized by the Taleans, argues Nader, thereby becoming “a counterhegemonic response by the indigenes to more than five hundred years of dealing with colonization” (2002: 29). She later applied this concept to American alternative dispute resolution (ADR) where she detected a shift away “from a concern with justice to a concern with harmony and efficiency, and from a concern with right and wrong to a concern with therapeutic treatment” (2002: 139). Claims of harmony, thus, were on the one hand revealed as a weapon of the weak, and on the other, a tool of governance that blocked the most vulnerable members of society from seeking legal recourse.

Far from the Mexican periphery in space and time, in the currently pending case of “The Republic of the Gambia vs Myanmar” that was heard at the International Court of Justice (ICJ) on Dec. 10-12, 2019, the spectre of instrumental harmony rears its head again. Speaking as a member of her country’s delegation, Myanmar’s “Agent”, Aung San Suu Kyi left the more legalistic arguments to the specialists for international law, and challenged the legitimacy of the case on the basis of harmony ideology. Similar to Nader’s Talean Zapotec, Aung San Suu Kyi drew on a historical legacy of the colonial encounter to account for Myanmar’s contemporary problems. She argued that the International Court of Justice, the principal judicial organ of the United Nations, should refrain from interfering in Myanmar’s domestic affairs. She depicted her country as “less materially resourceful” and lacking “sustainable development”. This is a plea to be granted special considerations for being underprivileged, but the “harmony ideology” in evidence at the ICJ was not a weapon of the weak, as Nader had it for the Talean Zapotec. It was wielded by a powerful politician who was backing a military justice system “at home” and a constitution that seeks to cement that status quo; the purpose was to avert the attribution of “the crimes of crimes” onto Myanmar’s army, and, by extension, the entire nation and herself. In short, Aung San Suu Kyi acted as if her country were a southern Mexican village, needing protection from illegitimate legal governance that interfered with its internal affairs, while at the same time embodying the very state apparatus that is now internationally accused of having committed genocide against its own population.

Background

The Gambia had initiated proceedings against Myanmar at the ICJ on November 11, 2019, with the support of the Organization of Islamic Cooperation (OIC). Their high-profile team of lawyers asked the court to hold Myanmar accountable for having committed genocide and to lay down “provisional measures” to prevent Myanmar from further committing genocide against the ethnic group of Muslim Rohingya living in the coastal Rakhine state which borders on Bangladesh. Myanmar has consented to the court considering the issue; this focuses on the question whether the atrocities committed by the Myanmar army since 2016, which led to hundreds of thousands fleeing their homes and thousands losing their lives, were carried out with “genocidal intent.” The ICJ has no jurisdiction to try individuals accused of war crimes or crimes against humanity, but it can rule on the issue of genocide based on the 1948 Genocide Convention. Since its inception, it has decided only once that “genocidal intent” had been the case, namely in regard to the massacre of Srebrenica (Bosnia and Herzegovina v Serbia and Montenegro 2007). The stakes for a case of genocide to be made are thus extremely high. While the facts are largely uncontested, the court “requires proof at a high level of certainty appropriate of the seriousness of the allegation” – a formulation which resembles that of criminal proceedings where evidence “beyond reasonable doubt” needs to be presented. William Schabas, who is part of Myanmar’s team of lawyers and an international expert on genocide, has argued in a publication that this approach “seems wise” given the fact that it “brings with it a terrible stigma, not to mention potentially enormous financial liabilities” (Schabas 2007: 108).

No other than Aung San Suu Kyi, the acting “state counsellor” and foreign minister of Myanmar, is heading the Myanmar delegation at The Hague. She is the only member in her team without any legal qualifications. Officially acting as Agent, she came, as we have argued elsewhere, in her role as “Mother Suu”, as her supporters call her, and as the daughter of Aung San, the founder of the army who died as a martyr shortly before Burma gained independence in 1948. In Myanmar, she continues to be viewed as an icon of democracy, who sacrificed her personal happiness for the nation, spending fifteen years under house arrest between 1989 and 2010, before returning to politics with her party National League For Democracy (NLD) and winning the elections in 2015. Both Judith Beyer and Soe Lin Aung have shown why this focus on her as an individual is analytically barely productive. Although atrocities against Muslim Rohingya were committed under her government already in 2016, a large part of the population – across religious and ethnic divides – continue to bestow all hopes on her. “We stand with Aung San Suu Kyi”-rallies have been held throughout the country in support of her appearance at the ICJ and Myanmar travel companies have arranged special offers that allow her supporters to travel to the Netherlands. That she opened Myanmar’s first response to the arguments The Gambia had brought forward heightened attention both in Myanmar and across the world.

Domestic accountability instead of international law

In her address to the court, Aung San Suu Kyi emphasized that her country was already doing its utmost to bring perpetrators of crimes to justice, including army soldiers. She warned of international interference in Myanmar’s domestic affairs at this crucial point, saying “there are those who wish to externalize accountability for alleged war crimes committed in Rakhine, almost automatically, without proper reflection”. Only if domestic accountability fails, she argues, is it warranted to intervene: “A rush to externalize accountability may undermine professionals in domestic criminal justice agencies”. She embedded this position firmly within a narrative of Myanmar still struggling with the legacy of British colonialism, particularly with the long-term effects of the border demarcation between Burma and India in 1937, a border than today runs between Myanmar and Bangladesh.

She spoke of “cycles of violence” that were set in motion with this demarcation which she specified as “Muslim-Buddhist intercommunal violence”. Her usage of the category of “community” was uncritical, but “community” is a term that demarcates an ethno-religious group and in this context separates “Muslims” from “Buddhists” and also from “Hindus” and thus laid the ground for divisions along the lines of ethnicity and religion. Her country is “striving to cope with the burden of unhappy legacies”, she argued, again hinting at British colonialism being the actual source of these “cycles of conflict.” She thereby sought to diminish any demand that could possibly be issued by Western countries at this moment, emphasizing that the court’s action would be “feeding the flames of an extreme polarization in the context of Rakhine” that would “harm the values of peace and harmony in Myanmar”. She thereby opened up an opposition between the “interest” of the court on the one hand and the necessary “spiritual mindset of unity” that pervades in Myanmar on the other. Even speaking in a “language that contributes to extreme polarization also amounts to hate narratives”, she argued, polarization that would likely be achieved already by using the word “Rohingya”, which any Myanmar state official avoids. The state and its institutions insist on using the term “Bengali” instead to insinuate that these people are foreign and belong elsewhere. On social media, Aung San Suu Kyi-supporters from Myanmar expressed their disappointment and confusion that William Schabas, ostensibly on their side, said the word a few times – but he was only quoting other documents. Aung San Suu Kyi concluded that “[i]t is a moral responsibility of leaders to guard the aspirations of people for harmony and peace” and listed a number of “social cohesion” measures “to promote social harmony among all communities”, among them the encouragement of “interfaith fora”: “We pray the Court to refrain from taking any action that might aggravate the ongoing armed conflict and peace in security in Rakhine … We look to justice as a champion of the reconciliation and harmony that will assure the security and rights of all people”.

Harmony ideology at The Hague

According to Aung San Suu Kyi, not letting institutions in Myanmar do their domestic work in conflict resolution and legal settlement of grievances, speaking about the events in Rakhine state in terms such as genocide, and using the word Rohingya will lead to aggravation of the situation on the ground. She thus wishes for a cordon sanitaire between her country and its ‘internal’ affairs remaining on one side, and global judgment and interference on the other. Harmony here is not only a global value, but is presented as a tool of governance that will, in the long run, have beneficial effects. Of course, these claims and demands would be easier to stomach if not – time and again – the Myanmar military had not been revealed to generally act with impunity. The soldiers who were eventually sent to prison for a massacre committed in September 2017, served less time than the two journalists who documented and brought the crime to light. And it is near inconceivable for any high-ranking generals in Myanmar to ever face charges in court. While the Zapotec might have had effective measures for local dispute resolution and good reasons to keep the state courts at bay, the atrocities committed against the Rohingya and the poor record of Myanmar to police itself suggest that Suu Kyi’s harmony ideology at the ICJ is sorely misplaced.

References

Nader, Laura. 1990. Harmony ideology. Justice and control in a Zapotec mountain village. Stanford University Press.

Nader, Laura. 2002. The life of the law. Anthropological projects. University of California Press.

Schabas, William. 2007. Genocide and the International Court of Justice. Finally, a duty to prevent the crime of crimes. Genocide Studies and Prevention 2(2): 101-122.

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