The Rohingyan genocide before the international judicial mechanisms

by Kelly Pisimisi,

According to official UN data (see for instance the UN Human Rights Council Report A/HRC/32/18, paras 2-3), Myanmar is the Asian country with the highest rate of ethnic diversity. In fact, its 1982 Citizenship Law recognizes only eight major “national ethnic groups”, further divided into 135 parts. The vast majority of the population are Buddhists, while only 4% of them are Muslims, 4% are Christians and less than 2% are Hindus.

Among the Muslim population, there are even more distinctions and subcategories. There are certain groups (such as the Kaman community or the Bamar Muslims, the “Chinese Muslims” and the “Indian Muslims”), which are officially recognized. On the other hand, even though the Rohingya Muslims undeniably represent the largest percentage of Muslims in the country mostly residing in the northern Rakhine State, they self-identify as a completely distinct (confessional) ethnic group with their own language and culture, claiming that they have a long-standing connection to their land, resembling thus to an indigenous population. Successive Governments -no matter their political origins- have continuously rejected those claims, leading to the exclusion of the Rohingyas from the aforementioned list of recognized ethnic groups. The anti-Muslim policy was further strengthened in the revised 2008 Myanmar’s Constitution (Ibrahim, 2016; Islam, S., 2019).

A fortuitous natural disaster revealing a well-established discriminatory and genocidal policy – The UN response

Even after Burma/Myanmar became an independent State in 1948 (Calvocoressi, 2009; Fahmida Farzana, K., 2017), the Rohingyas never stopped being targeted whenever the politicians felt the need to deflect the population’s attention from other serious matters. All relevant stakeholders, whether the government officials or some party leaders have been incessantly calling for their expulsion from the country, as they do not have any legitimate right to the Burmese homeland, while the main opposition kept ignoring their struggles; as a result, they were completely marginalized and practically outlawed. Through all these years such a narrative persisted and its supporters have employed a great array of arguments (mainly geographical or cultural), in order to solidify their beliefs and to justify their actions, despite the fact that such views have been constantly proven inaccurate.

Things became even worse, especially after the 1962 military junta, when a new logic was introduced and only Burmese Buddhists could actually claim citizenship and really be considered as loyal citizens (these characteristics could be alternated: hence, if not ethnically Burmese, then one could claim nationality on the basis of his/her Buddhist status). Therefore, the Rohingya people, having visible differences in their skin color, their language, but principally in their religion, they have been severely attacked under this discriminatory policy; even after the formal 2011 Myanmar’s turn to democracy. This narrative is practically materialized through well-organized and coordinated open racist attacks against them, reflecting the ongoing anti-Muslim prejudices of the outnumbered Buddhist society (Ibrahim, 2016; Islam, S., 2019). [For a thorough presentation of Rohingyas’ history see also a previous article at the SAFIA blog here.]

            Surprisingly, the ongoing political abnormalities had not been widely revealed and they were not severely criticized until the 2008 Cyclone Nargis that stroke principally the Rohingya inhabited regions. While cyclones are a typical and foreseeable natural incident of the Burmese climate, especially in spring, the national authorities were not prepared for the intensity of Nargis, mainly due to the geographic particularities of the country. The cyclone did not follow the usual route and that time it stroke the mainland and caught up on the coastal regions without losing any power. It destructed the Burmese economy, which was based on the production of rice.

The then Government initially refused to ask for and to receive any foreign help. Only on May 9th, 2008, (i.e almost a week after the incident) the Government agreed and accepted the aid offered, initially from the ASEAN members-States, the International Committee of the Red Cross, and later on, from the UN as well after a lot of pressure. The military was called to arms, but soon it was criticized as dangerous for the State’s own population. Through the military, the regime in force also tried to control the distribution of humanitarian aid, offering it mainly to its loyal supporters.

From the very beginning, the United Nations launched a well-coordinated campaign for the promotion and protection of human rights in Myanmar, demonstrating a particular concern on the Rohingyas. As a matter of fact, already since 2008 the UN Human Rights Council and until nowadays (the most recent ones were published in 2018 and 2019), along with the UN General Assembly, has adopted various Resolutions (and a 2013 Presidential Statement) in respect during both its Regular and its Special Sessions. Moreover, the appointed Special Rapporteur keeps conducting reports on the situation of human rights and their violations in the region. Both institutions highlight the negation of fundamental human rights of the group in question and call upon the national authorities to respect their international human rights obligations (as described in the OHCHR, Flash Report, 2016).

Under the auspices of the Council, an International Independent Fact-Finding Mission was also created, mandated to “to establish the facts and circumstances of the alleged recent human rights violations by military and security forces, and abuses, in Myanmar” (whose mandate, though, ended in September 2019). After the Fact-Finding Mission has established what really happened, it was succeeded by another UN mechanism, the Independent Investigative Mechanism for Myanmar, which accepts additional material and proof from individuals. In addition, the situation has been an issue of discussion even during Myanmar’s participation in the Universal Periodic Review procedure (a UN procedure which constitutes a peer-to-peer review of a State from other States regarding the former’s overall compliance with its human rights obligations). Cases of violations of the minimum human rights standards by Myanmar have also been treated by various International Human Rights Conventions’ Monitoring Mechanisms.

The whole emergency not only deteriorates the enjoyment of human rights by the Rohingya population, but it has created as well a significant refugee crisis in the wider Asian region. Indeed, Rohingya refugees tend to flee from their homes and seek refuge in neighboring countries, such as Bangladesh and India, creating, thus, an additional burden to the latter’s reception mechanisms. According to the latest UNHCR data, from the latest exodus of August 2017 approximately 740.000 Rohingyas fled to Bangladesh, 4% of whom are women and children. The local authorities have done their best, in order to better respond to the crisis, even though the existing resources are quite limited. The problem is further deteriorated due to the tropical climate. However, UNHCR and the international community, in general, need to respond to the undeniable humanitarian crisis, but most importantly to enhance their efforts to cope with medium- and long-term problems, such as education and protection of vulnerable groups of refugees (Noor, T. et al., 2017; Fahmida Farzana, K., 2017).

Bringing the responsible of the Rohingyan genocide to justice

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Source: https://news.un.org/en/story/2019/12/1053221

2019 marked a significant change in the way the international community responds to the ongoing Rohingya crisis. First and foremost, an application was lodged by The Gambia against Myanmar before the International Court of Justice, alleging violation of the  1948 Convention on the Punishment and Prevention of the Crime of Genocide. The Convention criminalizes the practice of genocide (Arts I-III) and establishes universal jurisdiction for the punishment of its perpetrators (Art. IX); i.e. a State-Party can bring a case before the Court against another State-Party even though none of the traditional jurisdictional bases is fulfilled (e.g. active or passive personality etc).

It is quite intriguing to investigate the eventual outcome of the application, especially after taking into consideration the substantive and procedural questions that arise. For The Gambia, it will be quite easy to support its accusations on genocide, as it can use the findings of the UN-created International Independent Fact-Finding Mission. In addition, while The Gambia is asking for the attribution of international responsibility on Myanmar, the latter cannot be protected under its reservations regarding Art. VI, according to which the national jurisdiction on individuals shall prevail over the ICJ jurisdiction. Furthermore, the Gambian application seems to be well backed up on the basis of the previous ICJ precedent. More specifically, in its 2007 decision on the Bosnian Genocide, the Court, while not holding liable Serbia for most of the incidents -except for the Srebrenica massacre- it held that “[the] obligation to prevent the commission of the crime of genocide is imposed by the Genocide Convention on any State party which, in a given situation, has it in its power to contribute to restraining in any degree the commission of genocide… the obligation to prevent genocide places a State under a duty to act which is not dependent on the certainty that the action to be taken will succeed in preventing the commission of acts of genocide, or even on the likelihood of that outcome.” (Islam, R., 2019)

Quite recently, on January 23rd, 2020, the International Court of Justice published its Order on the request for provisional measures in the present case. While establishing that it seems to have jurisdiction in respect and clearing out -at least at a very first stage- that The Gambia does have standing before it, the Court concludes in that the necessary prerequisites are met. The Court reminds that in any case, Myanmar is internationally responsible for complying with the provision of the Genocide Convention (to which it has adhered already since …). That means that the national authorities (including all -regular and irregular- military units) shall take all necessary measures to prevent any act of genocide against the Rohingya population, as well as they shall ensure that any evidence on the matter shall be preserved. In addition, the Court dictates that within four months from the publication of its Order, Myanmar shall conduct a report regarding the implementation of the provisional measures and thereafter subsequent reports shall also be filed every six months.

Almost at the same period, another major step was made in the field of international justice. The Pre-Trial Chamber of the International Criminal Court authorized the Prosecutor to investigate the alleged crimes of Myanmar against the Rohingyas (See here). This case is an intriguing one as well. Although Myanmar is not Party to the Rome Statute and, therefore, the Court cannot in principle exercise its jurisdiction over the Burmese territory, it has practically extended it, asserting that it can do so, for part of the criminal conduct in question takes place in the territory of a State-Party to the Rome Statute (i.e. Bangladesh, which has ratified the Statute in 2010). More precisely, the Chamber acknowledged that there is a reasonable ground to establish that the undeniable deportation of persons across the frontiers and the persecution on grounds of ethnicity and religion could amount to crimes against humanity if they are committed as part of a widespread or systematic attack against the individuals in question.

Bibliography

Books

[1] Calvocoressi, P. (2009). World Politics since 1945. 9th Edition. United Kingdom: Pearson Longman.

[2] Fahmida Farzana, K. (2017). Memories of Burmese Rohingya Refugees. Contested Identity and Belonging. Palgrave Macmillan.

[3] Ibrahim, A. (2016). The Rohingyas: Inside Myanmar’s Hidden Genocide. London: Hurst & Company.

Articles

[1] Islam, S. (2019). Understanding the Rohingya Crisis and the Failure of Human Rights Norm in Myanmar: Possible Policy Responses. Jadavpur Journal of International Relations 1–21.

 [2] Islam, R. (2019). Gambia’s Genocide Case Against Myanmar: A Legal Review. The Diplomat. November 19th, 2019. Available here.

[3] Noor, T., Islam, S. & Forid, S. (2017). Rohingya Crisis and The Concerns for Bangladesh. International Journal of Scientific & Engineering Research Volume 8, Issue 12, December-2017, p.p. 1192-1196.

[4] War crimes court approves inquiry into violence against Rohingya. The Guardian. Available here.

International Instruments

[1] UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, United Nations, Treaty Series, vol. 78, p. 277. Available here.

[2] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III). Available here.

[3] UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998. Available here.

Reports and Resolutions

[1] Report of OHCHR mission to Bangladesh (7 February 2017): Interviews with Rohingyas fleeing from Myanmar since 9 October 2016 (Flash Report). Available here.

[2] A/HRC/32/18 (29 June 2016): Report of the United Nations High Commissioner for Human Rights on the Situation of human rights of Rohingya Muslims and other minorities in Myanmar. Available here.

 

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