Aung San Suu Kyi Could Probably Be Prosecuted for International Crimes

On Monday, a group of Nobel Peace laureates issued a remarkable public statement not only condemning Aung San Suu Kyi for actively denying that Myanmar has committed international crimes against the Rohingya, but also calling for her to be prosecuted for those crimes herself:

As Nobel Peace laureates, we call on Aung San Suu Kyi, a Nobel Peace Prize recipient, to publicly acknowledge the crimes, including genocide, committed against the Rohingya. We are deeply concerned that instead of condemning these crimes, Aung San Suu Kyi is actively denying that these atrocities even occurred.

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As people of peace, we urge Aung San Suu Kyi to address the systematic discrimination of the Rohingya in Rakhine State, and ensure the Rohingya’s right to nationality, land ownership, freedom of movement and other fundamental rights. We also urge her to exercise her personal and moral responsibility towards the Rohingya and acknowledge and condemn the genocide committed under her watch.

Aung San Suu Kyi must be held criminally accountable, along with her army commanders, for crimes committed.

Like most observers, I have been horrified by Suu Kyi’s denialism. Her sickening “argument” at the ICJ yesterday was simply the most recent iteration of claims she has been making for years. She has consciously adopted the authoritarian strategy adopted by tyrants everywhere: when faced with overwhelming evidence of international crimes, blame the victims for their own victimization. Indeed, as many have noted, Suu Kyi is almost pathologically averse to saying the word “Rohingya,” a testament to her conscious desire to dehumanize the people her military has been systematically killing, raping, and displacing. If the Nobel Committee had any integrity whatsoever — which it doesn’t, given its decision this year to give the Nobel Prize for Literature to a Srebrenica denier and its earlier decision to give the Nobel Peace Prize to a man who granted impunity to torturers and oversaw the unprecedented expansion of the US’s bloody drone program — the Committee would immediately rescind Suu Kyi’s Peace Prize.

Whether Suu Kyi is responsible for the commission of international crimes, the topic of this post, is a more complicated question. But my preliminary answer is “yes.” Here, for example, is what the Independent International Fact-Finding Mission on Myanmar concludes in its 2018 report — the one in which it alleges that genocide has been committed against the Rohingya — about criminal responsibility:

92. The mission has drawn up a non-exhaustive list of alleged perpetrators of crimes under international law, indicating priority subjects for investigation and prosecution. The list includes the names of alleged direct perpetrators, but focuses on those exercising effective control over them. In relation to the recent events in Rakhine State, this includes the Tatmadaw Commander-in-Chief, Senior-General Min Aung Hlaing, and:

— Deputy Commander-in-Chief, Vice Senior-General Soe Win

— Commander, Bureau of Special Operations-3, Lieutenant-General Aung Kyaw Zaw

— Commander, Western Regional Military Command, Major-General Maung Maung Soe

— Commander, 33rd Light Infantry Division, Brigadier-General Aung Aung

— Commander, 99th Light Infantry Division, Brigadier-General Than Oo

The full list will be held in the mission’s archives, kept in the custody of OHCHR, and may be shared with any competent and credible body pursuing accountability in accordance with recognized international norms and standards.

93.  The constitutional powers of the civilian authorities afford little scope for controlling the actions of the Tatmadaw, nor is there any indication that they participated directly in planning or implementing security operations or were part of the command structure. Nevertheless, nothing indicates that the civilian authorities used their limited powers to influence the situation in Rakhine State where crimes were being perpetrated. The State Counsellor, Daw Aung San Suu Kyi, has not used her de facto position as Head of Government, nor her moral authority, to stem or prevent the unfolding events, or seek alternative avenues to meet a responsibility to protect the civilian population. On the contrary, the civilian authorities have spread false narratives, denied the wrongdoing of the Tatmadaw, blocked independent investigations (including that of the fact-finding mission), and overseen the destruction of evidence. Through their acts and omissions, the civilian authorities have contributed to the commission of atrocity crimes.

Although the IIFFM’s analysis seems to rule out prosecuting Suu Kyi for the Tatmadaw’s crimes as an orderer, co-perpetrator, or civilian superior (subject, of course, to additional evidence coming to light), it supports prosecuting her for aiding and abetting (Art. 25(3)(c) of the Rome Statute) or for contributing to the commission of a group crime (Art. 25(3)(d)). In terms of mens rea, there is no question that Suu Kyi has long known about the Tatmadaw’s international crimes, which is all that Art. 25(3)(d) requires. And it’s not much of a stretch to imagine judges at the ICC concluding, in light of her enthusiastic willingness to promote false narratives about Myanmar’s brutal repression of the Rohingya, that Suu Kyi actually intended the Tatmadaw to commit at least some of those crimes, which is what Art. 25(3)(c) requires.

The real issue, then, is whether Suu Kyi’s actions satisfy the actus reus of aiding and abetting or contributing to a group crime. What those actus rei require is notoriously uncertain, as Manual Ventura skilfully explains here (pp. 47-51). Pre-Trial Chambers and Trial Chambers have oscillated between requiring a perpetrator’s assistance to have a “substantial effect” on the assisted crimes (the customary position) and considering any effect sufficient. For its part, the Appeals Chamber kinda-sorta implied in Bemba et al. that any effect is enough, but Ventura rightly notes that its analysis is cursory and confused. (The judgment implies that no causal effect might be required, as long as the intent to assist was present — which can’t be right given the ordinary meaning of “aids, abets, and assists.”)

As para. 93 of its report indicates, the IIFFM believes that Suu Kyi has contributed to the Tatmadaw’s commission of international crimes. That strikes me as a sound proposition: it would be surprising if the civilian leader of Myanmar’s efforts to rationalize and conceal the brutal repression of the Rohingya did not encourage the Tatmadaw. And indeed, experts who know far more about Myanmar than I insist that there is a connection. Azeem Ibrahim, for example, has said that “without doubt” Suu Kyi’s actions “emboldened and encouraged the military to undertake the final solution” to the Rohingya problem.

The IIFFM’s statement that “the civilian authorities have… overseen the destruction of evidence” is also critical. Whether ex post assistance can qualify as aiding and abetting is a notoriously complicated legal issue, as Ventura discusses (pp. 72-77). But that issue is not relevant here, because the Tatmadaw’s crimes have taken place over a number of years and continue even today. I can’t see any ICC judge declining to find the actus reus of aiding and abetting or contributing to a group crime when an individual participates in the destruction of evidence while the criminal acts are ongoing.

Given what the IIFFM and experts like Ibrahim have said, I don’t think it would matter whether the ICC adopted the “any effect” or “substantial effect” requirement for the actus reus of aiding and abetting or contributing to a group crime. Either way, it is difficult to see how Suu Kyi could argue that her efforts to rationalize and conceal crimes committed against the Rohingya did not significantly embolden the Tatmadaw — particularly given her position of power. As Ventura notes (p. 45) based on his extensive analysis of ICTY and ICTR jurisprudence:

Although a high rank or high political position is not a legal requirement of aiding and abetting per se, the correlation makes sense. The more power and influence a person wields, the higher the likelihood that his/her acts or omissions will have an effect on criminal activity carried out by others.

Finally, I think it is important to emphasize that Suu Kyi’s criminal responsibility does not necessarily depend on the Tatmadaw’s international crimes. Given what Mehdi Hasan discussed in a recent article for The Intercept, it seems eminently possible that Suu Kyi could be prosecuted for the crime against humanity of persecution on the basis of superior responsibility — and possibly for ordering or co-perpetration, as well, depending on the facts:

Second, say Suu Kyi defenders, as Myanmar’s first civilian leader after 49 years of military rule, she has no control over the armed forces. Therefore she cannot be held responsible for their brutal attacks on the Rohingya.

But this, says Maung Zarni, a fellow at the Genocide Documentation Center in Cambodia, “is a complete mischaracterization of Suu Kyi’s role” in those crimes. Zarni, a Burmese Buddhist who knows Suu Kyi personally and was once an ardent supporter of hers, points out that she controls four civilian ministries that have long been involved in repressing the Rohingya — the information, religious affairs, immigration, and foreign affairs ministries — not to mention her own high office of state counselor. The latter, as I noted in April 2017, “accused Rohingya women of fabricating stories of sexual violence and put the words ‘fake rape’ — in the form of a banner headline, no less — on its official website.”

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As Zarni says, “There is no absolution of her responsibility for the official statements, bills, measures … all designed to deprive Rohingyas of access to education, health service, due process, livelihoods opportunities, factual information about Rohingya history, legal status, past citizenship activities and citizenship.” Suu Kyi, he told me bluntly, plays a similar role to that of Joseph Goebbels in Nazi Germany, “perhaps less blatantly, but no less effectively.”

This is a particularly dangerous area for Suu Kyi, given that the Pre-Trial Chamber recently authorized the OTP to conduct a formal investigation into the situation in Myanmar. As readers know, in its previous decision on jurisdiction, the Pre-Trial Chamber singled out persecution as one of the international crimes the ICC can prosecute. Insofar as the OTP wants to focus on persecution as part of its investigation, Suu Kyi will almost certainly be at the top of its list of potential suspects.

In conclusion, let me be clear: what I have written above is by no means an adequate criminal-law analysis of Suu Kyi’s responsibility. A proper analysis would need to engage much more deeply with the disputed legal issues and with the facts of the case. That said, given what we do know thanks to the tireless efforts of the IIFFM and various NGOs, I’m not sure Suu Kyi should travel to Europe anytime soon without the kind of immunity she had at the ICJ.

ADDENDUM: Although this post focuses on the ICC, it is important to remember that any state with the necessary universal jurisdiction legislation could prosecute Suu Kyi (or any official, government or military, in Myanmar) for international crimes committed against the Rohingya. National prosecutions would not face the ICC’s jurisdictional limitations, which limit the OTP to investigating deportation and persecution.