Anushka Saxena

Research Intern at Jindal Centre for the Global South
MA (DLB) at Jindal School of International Affairs
E-mail: 21jsia-asaxena@jgu.edu.in


Image Source : Hossain, Mohammad Ponir, (2017)

The United Nations Agenda 2030, or the Sustainable Development doctrine comprising 17 goals and 169 targets, was meant to be our most recent, genuine effort as citizens of the world to make sure that the foundations of our planet and its institutions remain solid for generations to come. The 16th Sustainable Development goal, entitled “Peace, Justice and Strong Institutions”, carries targets specifically designed to achieve said effort, and one of its targets (target 16.3) seeks to “Promote the rule of law at the national and international levels and ensure equal access to justice for all”. In reality, this is just one of many targets that we are failing on, in the context of the situation of the Rohingyas in Bangladesh and Myanmar (known interchangeably as Burma).

Ever since the United Nations’ Independent Fact-Finding Mission on Myanmar released its first report in August 2018 on the atrocities and human rights violations committed in the western coastal Rakhine state of Myanmar, the international community has come to associate the terms “genocide” and “ethnic cleansing” with the conditions prevailing there. Another phrase that has come to be associated with it is “refugee crisis”, as over a million Rohingya Muslims have fled from the Maungdaw and Buthidaung townships in the Rakhine state, to set up shop in neighbouring Bangladesh’s Cox’s Bazaar. Here, it must be noted that the roots of the events leading up to this refugee crisis find their basis in government-sponsored discrimination and genocidal violence.

Just like the ethnic divide between the majority Hutu and the minority Tutsi groups in Rwanda traced their origins back to Belgian colonial rule, the tensions between Myanmar’s Buddhists and Rohingya Muslims increased with the colonial occupations faced by erstwhile Burma, first at the hands of the British, and then at the hands of the Japanese. However, unlike the events of genocide in Rwanda, the beginnings of discrimination and sentiments of hatred between the two ethnic groups in Myanmar were brought about by its own government – the military government led by General U Ne Win, which had usurped power from a democratically elected government in a bloodless coup in 1962 and chose to blame the colonialists for “polluting” Myanmar. It was with the coming of General Ne Win’s government that the Rohingyas started to lose all ground and privilege in the country, including the right to be considered legitimate citizens – something that had never happened before, even under British or Japanese rule.

The events began unfolding in 1982, when a discriminatory Citizenship law passed by the military government of Burma identified 135 legitimate national indigenous and ethnic groups and excluded Rohingyas from the list (BROUK, 2014). The criteria for citizenship under said law was that an individual had to be a legal citizen of Burma before 1824, which was the year of the British invasion of the country. Rohingyas, who claimed to have been living in the Arakan (now Rakhine) state for centuries, felt violated. Testimonies from Rohingyas who fled persecution and are now settled in Bangladesh, indicate that their fathers and forefathers lived on the grounds of the Kingdom of Arakan for centuries, and had documents, passports, and relevant proof of owning property till 1962 to prove under the 1982 law that they had always been legitimate citizens of Myanmar. Unfortunately, the government was sure to have them cleansed, and a 2016 attack on some Burmese officials by a group of radical Rohingyas gave them the perfect opportunity to retaliate disproportionately and commit mass slaughter, burning of homes and villages, and sexual violence including rape, against the Rohingya Muslims. This cleansing campaign of terror, coupled with elements of banned Buddhist extremist movements such as the MaBaTha and the 969 movement, began with full force in October 2016 and are carried on across 2017, leading to a huge migrant influx from Burma to Bangladesh.

Violation of International Law and the Gambia v. Myanmar

The circumstances before and during the genocidal events have violated various provisions of customary international law. To begin with, when in the 1990s, the military government refused to confer citizenship upon Rohingyas and their children, Burma violated Article 7 of the Convention on the Rights of the Child, which the state had ratified in 1991. In spirit, Burma also violated the 1948 Universal Declaration on Human Rights, Articles 15 and 16 of which discuss the universal right of every citizen to gain a nationality, and to be married and have a family irrespective of nationality, race or religion. The essence of this violation continued with the four “Race and Religion Protection” laws (International Commission of Jurists, 2019) passed in Myanmar in May 2015, which specifically targeted Muslim women and families on matters of interfaith marriages and population control.

Secondly, as per the conclusions of the UN Human Rights Council report entitled “Sexual and gender-based violence in Myanmar and the gendered impact of its ethnic conflicts” (dated 22 August 2019), women and children have been subjected to gang rape and other forms of sexual violence as part of the Burmese government’s cleansing operations, and to-date, none of the officers (part of Myanmar’s Tatmadaw or “armed forces”) alleged to have engaged in such sexual violence have been held accountable. The case law resulting from the proceedings of the International Criminal Tribunals for the former Yugoslavia and Rwanda has reformed the definition of “Genocide” to include rape and sexual violence and has gone further to define rape as a Crime against Humanity. The state counsellor for Burma – Aung San Suu Kyi, who was once a symbol of democratic hope for Myanmar and the world, maintained a deafening silence on the issue.

Of course, the most prominent violations of international law have been those of the 1948 Genocide Convention (which was ratified by Burma in 1956), recognized under the ICJ Statute (which Burma ipso facto became a party to, as a member of the UN since 1948). The possibly forceful repatriation of Rohingya refugees from Bangladesh can also account for a violation of the principle of non-refoulment under International Human rights law, and the genocidal attacks against the Rohingyas at the hands of the military state of Burma have accounted for violations of the fundamental principles of war under International Humanitarian Law. For example, while the principle of necessity mandates for states to assess the need for waging a war in a particular situation before going ahead with it, the principle of proportionality mandates retaliation that is proportionate to the attack faced from an aggressor. Needless to say, the Tatmadaw operations in the Rakhine state have violated said principles, and more.

Stating the abovementioned contraventions, on 11 November 2019, the government of the Republic of The Gambia, on behalf of the 57 nations of the Organization for Islamic Cooperation, filed an application with the International Court of Justice instituting proceedings against Myanmar on account of the violation of the 1948 Genocide Convention. The application also comprised a request for “Provisional Measures”, pursuant to Article 41 of the ICJ Statute, through which the Gambia sought the ICJ to indicate provisional measures to protect the rights invoked by the Rohingyas from “imminent and irreparable loss”. During the preliminary proceedings, the Gambia, represented by its Minister of Justice and Attorney General Abubakar Marie Tambadou, cited gory pieces of evidence to support its claims of the Crime of Genocide having been committed in Myanmar’s Rakhine State. Myanmar, on the other hand, was represented by State Counsellor Suu Kyi, who appeared in the Court at the Hague, Netherlands in December of 2019. In January of 2020, the Court issued an order for Myanmar to comply with the request for provisional measures to protect the rights of the Rohingyas. The order also mandated for Myanmar to report on the implementation of said measures and the situation in the Rakhine state, every 6 months. The latest update for the case has been on 28 January 2021, when the Court asked the Gambia to file its responses to Myanmar’s preliminary objections.

Additionally, legal proceedings about refugees in Bangladesh are also going on in the International Criminal Court. While Myanmar is not a party to the statute of the ICC, known also as the Rome State, Bangladesh is, and therefore ICC has jurisdiction to overlook potential violations of the Rome Statute committed “in part” on the territory of the state of Bangladesh. The case, still in its Pre-Trial Chamber stage, took off in 2019 when the ICC Prosecutor Fatou Bensouda, as per the provisions of Article 15 of the Rome Statute, motu proprio decided to investigate the alleged crimes that took place against the Rohingya refugees in Bangladesh, including deportation, persecution, and other inhumane acts. Her request for authorization of said investigation cleared in November 2019 itself, and the appraisals have continued since then, despite Myanmar’s refusal to cooperate on grounds of ICC’s lack of jurisdiction over Burmese territory.

The Changing Situation

The events up to February 2021 took place under the ambit of an elected government in Myanmar, led by Suu Kyi’s National League for Democracy (NLD). In February 2021, a military coup d’état at the hands of Min Aung Hlaing-led Tatmadaw led to a regression in the Burmese governmental landscape, as an authoritarian government again came back to power and the protests that ensued were brutally cracked down on. Given the dicey situation, it is expected that the court case in the ICJ, and the Rohingya hope for access to justice, will dwindle.

The military is now in de-facto control of the state of Myanmar. But that does not call into question the state’s competency to carry forward with the trial. As such, the legitimacy of a state’s government is not for the ICJ to debate, considering throughout the Court’s statute, the reference is made to the “state” itself and not to the government representing it. It may seem straightforward prima facie, however, this may be the right opportunity for the National Unity Government of Myanmar to challenge internationally, the validity of the junta government. At the same time, some of the NUG officials may have to come to terms with bearing the liability of being silent spectators to genocide in 2016-17, but that may not be as severe as being barred from fighting the case and having the perpetrators represent their own selves, which is a clear violation of the principle of natural justice – no one can be a judge in their own case. The uncertainty will arise when the two conflicting parties, through their personal correspondences to the ICJ, engage in the matter of who shall be the rightful representative in the case, and the ICJ may have to suspend proceedings on that account.

With the restructuring of the panel representing Myanmar in the case and the addition of more military officials to the team, the arrests of previous representatives such as Aung San Suu Kyi and Kyaw Tint Swe, and the banning of NUG by the military junta, there are many directions the case can go in. For example, the junta government may refuse to comply with the January 2020 order to report on the provisional measures for protecting Rohingyas. Of course, there is also the extreme possibility Myanmar fails or refuses to participate in the case and defend itself, which may lead to the invocation of Article 53 of the ICJ Statute, under which such a party stands to automatically lose the case. In that scenario, Myanmar will invite upon itself global sanctions and pressure overcompensations and reparations, thereby worsening the situation of its citizens. Dr. Sasa, a Burmese politician and formerly the CRPH Special Envoy to the UN, has in the meantime began working on collecting evidence of atrocities committed by the junta to submit to the ICC (Ye Kaung Myint Maung, 2021), with the intention of bringing Hlaing and his armed forces to justice. As the case proceeds over a period of many years, new findings, especially those brought to light by the potential work done by Sasa, may either tilt the case in The Gambia’s favour and further the ICC investigations, or it may lead to a much more brutal crackdown on dissenting opinions and voices coming out of Myanmar.

Access to justice is easier spoken of than guaranteed, and in the case of the Rohingyas, there is a double denial of justice – once for the crimes committed against them in their home state, and once in their status as refugees living in Cox’s Bazaar. As premier legal global institutions, even the ICJ and the ICC are bound by provisions of sovereignty, and even while recognizing the prima facie case against Hlaing and Tatmadaw, no conclusions can be reached without procedure established by and due process of law. The coup has made matters worse for now, and there is potential for the ICJ case to be suspended and/ or further prolonged. In any way, one can only spectate how things unravel on the ground and impact the long-sought Rohingya dream for equality and justice.

Reference List :

  1. United Nations Organisation. (n.d.). Peace, justice and strong institutions. United Nations Sustainable Development. https://www.un.org/sustainabledevelopment/peace-justice/#tab-eb030c43e0900c3690b
  2. United Nations Organisation. (2018). Report of the independent international fact-finding mission on Myanmar. https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/A_HRC_39_64.pdf
  3. BROUK. (2014). Myanmar’s 1982 Citizenship Law and Rohingya. https://burmacampaign.org.uk/media/Myanmar%E2%80%99s-1982-Citizenship-Law-and-Rohingya.pdf
  4. United Nations Organisation. (1946). Statute of the International Court of Justice. https://www.icj-cij.org/en/statute
  5. Statute of the International Criminal Court. (1998). https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf
  6. Office of the UN High Commissioner for Humar Rights. (2019). Sexual and gender-based violence in Myanmar and the gendered impact of its ethnic conflicts. https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/sexualviolence/A_HRC_CRP_4.pdf
  7. US Holocaust Memorial Museum. (n.d.). In Their Own Words – Burma’s Path to Genocide. USHMM Exhibitions. https://exhibitions.ushmm.org/burmas-path-to-genocide/chapter-1/in-their-own-words-1
  8. Convention on the Prevention and Punishment of the Crime of Genocide. (1948). United Nations Organisation. https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf
  9. The Republic of The Gambia. (2019). The Gambia v. Myanmar : Application for Instituting Proceedings and Request for Provisional Measures. ICJ-CJI. https://www.icj-cij.org/public/files/case-related/178/178-20191111-APP-01-00-EN.pdf
  10. ICJ Reports 2020. (2020). The Gambia v. Myanmar : Application of the Convention on the Prevention and Punishment of the Crime of Genocide. ICJ-CJI. https://www.icj-cij.org/public/files/case-related/178/178-20200123-ORD-01-00-EN.pdf
  11. International Commission of Jurists. (2019). Challenges to Freedom of Religion or Belief in Myanmar : A Briefing Paper. https://www.icj.org/wp-content/uploads/2019/10/Myanmar-Freedom-of-religion-brief-Advocacy-Analysis-brief-2019-ENG.pdf
  12. Hossain, Mohammad Ponir, (2017), https://www.forbesindia.com/aperture/slideshow/rohingya-crisis-images-that-won-the-pulitzer-prize/49957/15#photo.

The opinions expressed in this article are those of the author (s). They do not purport to reflect the opinions or views of the Jindal Centre for the Global South or its members.


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