ICJ: The Myanmar–Rohingya files

Reading time: 8-10 minutes.

In a three-day hearing in front of the world court, the International Court of Justice, Aung San Suu Kyi, state counsellor of Myanmar, who used to be a global human rights and democracy icon, personally led a delegation and defended her country from accusations of genocide against the Rohingya community on December 11.

West African nation of Gambia filed a lawsuit in November 2019 alleging that Myanmar committed ‘genocidal acts’ that were ‘intended to eradicate Rohingya as a group’ through atrocities like mass murder, rape. According to Gambia, which is backed by a 57 member Organisation for Islamic Cooperation (OIC), Myanmar’s actions violated the 1948 Genocide Convention which both the countries are parties to. The case called for imposition of ‘provisional measures’ which would act like an injunction for Myanmar to halt the atrocities towards Rohingya Muslims.

Aung San Suu Kyi, who was stripped of a prestigious human rights award by Amnesty International over her ‘indifference’ towards the atrocities committed by the Myanmar military, addressed the 17-member judge panel and defended the genocide accusation by regarding it as ‘incomplete and misleading factual picture of the situation.’

Final judgement will take years, however, this ICJ case is significant as it led the Myanmar authorities answer to the crimes and their atrocities committed against the Rohingya minority.

Who are the Rohingyas?

Rohingyas are members of Muslim ethnic individuals inhabiting western part of Myanmar (Burma). Arakan, now Rakhine, a state in Myanmar, was the key to cultural exchange between the nation and the rest of the world in the 7th century. Many Arabs and Muslim traders reached this place and settled there. They came to be known as Rohingyas. “The origins of the Rohingya in Arakan, Myanmar are well documented in the literature and are said to date from the 7th century AD. Their ancestry can be traced to Arab, Moor, Pathan, Moghul, Central Asian, and Indo-Mongoloid people who settled in the region over several centuries.”

History of disputes between the state and Rohingyas

The tension between the Burmese Buddhists and the Rohingyas (mostly Sunni Muslims) go back to the Second World War. Rakhine was the frontline of war where Japanese imperial forces confronted the British forces. The Rohingyas sided with the British colonialists who ruled the country and the Buddhists sided with the Japanese invaders hoping they would help end the British rule. Armed conflicts between Rakhines and Rohingyas killed thousands of Rakhines and Rohingyas between 1942 and 1943.[3] The Japanese were defeated and inter – ethnic conflict continued.

After Myanmar’s independence in 1948, Rohingyas sought an independent state but were discriminated by the citizenship law of 1948 that did not allow the Rohingyas who fled during the Second World War to return to the country regarding them as illegal migrants. Some Buddhists viewed Rohingyas as ‘foreigners with separatist aspirations’ who pose a risk to the religious and ethnic identity of the country, some feared the perceived threat of ‘Islamization’. In 1962, the military took over the state in a coup establishing the first of several successful military regimes. In 1964, the military introduced the National Security Act that banned all the Rohingya organisations.

Although their lineage could be traced back to the 15th century Burma, the government has been forcing them out claiming them to be illegal immigrants from Bangladesh. In 1978, after a massive crackdown called ‘Operation Dragon King’ forced about 2,00,000 Rohingyas to flee to Bangladesh. The military reportedly used rape and violence to drive them out. About 1,70,000 Rohingyas returned to Burma. Then in 1982, the government passed the Citizenship Act during the dictatorship of General Ne Win recognising 135 ethnic groups but the Rohingyas were not on the list. Thus, they became stateless people. In 1991, the military launched another operation called ‘Operation Clean and Beautiful Nation’ which led about 2,50,000 Rohingyas flee to Bangladesh. Mass killing of Rohingyas occurred in 2012 when four Muslim men were accused of raping a Buddhist woman in Rakhine. By this point, Rohingyas were persecuted, disenfranchised and rendered stateless by the Myanmar Government.

In 2016, Arakan Rohingya Salvation Army (ARSA) emerged that coordinated small – scale attacks on border police stations. In 2017, killing of police officers by the ARSA sparked the situation that led to brutal retaliation by the state security forces. Since then 210 villages have been burned to ground, more than 6,00,000 Rohingya Muslims (60 percent of whom were children) fled to Bangladesh’s Cox’s Bazar because of the systematic pattern of organised violence carried out by the Myanmar military. This violent campaign triggered the fastest growing humanitarian crisis.

Role of the Myanmar government

Contrary to the promise given by the government where they assured that the Rohingya would be brought back to their homeland, it has played a pivotal role in aggravating the atmosphere in which they live by making rules, regulations and laws that make their return and integration even more difficult. Many villages in Rakhine in which they lived have been abandoned, burned and renovated to establish new homes, housing mainly the Buddhist population and providing an area for State facilities like military bases.

Yanghee Lee, UN’s special rapporteur on human rights in Myanmar, states that Myanmar is deliberately making it impossible for the Rohingya who have driven out of the country to return as their homes are being cleared and the heavy documentation and other legal barriers make it much harder. The refugees prefer their shabby sheds over a place in Myanmar as they still have no stance on their citizenship and land rights.

Human rights violations

The ongoing crisis hosts a bunch of Human Rights violations.

  • Right to freedom of religion

The government has been accused of actively supporting Theravada Buddhism over other religions, mainly the minority of Islam and Christianity, going as far as making Buddhism a criteria for promotions in military and government ranks.

  • Right to freedom of speech

Human Rights Watch has noted that the freedom of speech and expression in Myanmar has faced a downfall in the recent years owing to the misuse of defamation as a defence.

  • Women’s Rights and Right against Exploitation

Since August 25, 2017, Burmese security forces have committed widespread rape against Rohingya women and girls in the Rakhine State to “purify the State”. Many of the rape survivors were not given the basic rape aftercare by the government.

  • Right to shelter/housing

People have been denied their basic right to a proper home by Myanmar which is yet to accept them as a part of their nation.

Principles of international law involved

A rudimentary principle of International Law is that a State should be held liable for violation of its international obligations and make good any damage done to other states and entities. Here, Myanmar has been accused of violating the 1948 Genocide Convention by conducting what the UN described as “the largest ethnic cleansing mission”. Hence, the basic principle of ‘State Liability’ under international law is applicable.

Jus Cogens norms of International Law are those which all the nations have recognized and accepted as fundamental rules. This includes the rights against genocide, torture and prohibition on acquisition of territory by force, all of which have been violated in the Rohingya-crisis. They have been supposedly killed in mass deliberately, moved from their homes forcefully by burning their villages and have been tortured mentally and physically such as the many women who were raped and subsequently killed and those who survived suffered socially and emotionally. Hence, the basic principle of ‘Jus Cogens’ has also been met.

As a result of a violation of a jus cogens norm, an Erga Omnes obligation arises on the perpetrator wherein they are held liable to all who have suffered as a result of the malicious act.

Does the ICJ have jurisdiction in this matter?

Whether the ICJ has a jurisdiction over Myanmar on the matter can be understood with the applicability of international law, here, the Convention of Prevention and Punishment of Genocide of 1948. Article 9 states “any contracting party may submit a dispute between it and another contracting party relating to the interpretation, application or fulfilment of the Convention to the ICJ, including disputes about the responsibility of a state for genocide”.

There have been reservations lodged for this by 15 states but Myanmar is not one of them and has reserved for Articles 6 and 8 instead. Article 6 states “Persons charged with genocide be tried by a competent tribunal of the state in which the offense took place or by an ‘international penal tribunal’”. This exempts Myanmar from future international liability but does not exclude it from the action of the ICJ.

Article 8 provides that “contracting parties may call upon the competent organs of the UN to take such action under the Charter of the UN as they consider appropriate for the prevention and suppression of acts of genocide”. Myanmar is the only party to have made a reservation against this provision and hence any nation can easily and rightfully approach an international body of justice to look over the matter.

Thus, it is clear that the International Court of Justice has a rightful jurisdiction over the pivotal humanitarian issue.

The next logical question would be whether the decision given by it would be binding or not. The answer to this is simple and straightforward. The judgements are final and non-negotiable, only if the meaning of it is not understood by a party could it be questioned wherein the meaning of it would be explained or if an unknown essential fact is uncovered then the case would be reconsidered. Article 94 of the UN Charter provides that “Each member of the UN undertakes to comply with the decision of the ICJ in any case to which it is a party”. Hence, if and when a judgement is given by the ICJ on this matter, it would be binding on Myanmar.

Probable way forward

In the time of turmoil the best thing to do is to look at viable solutions, some of which could be:

  • The real facts and figures of the human rights issues should be made public to make providing justice easier and faster.
  • Provisions for protection and relief of endangered refugees should be made at the camps including health facilities, police stations, education, safe drinking water and food, all the basic essentials of living a dignified human life.
  • Cooperation in the international community to find alternatives to the resettlement of Rohingya in Myanmar. Finding a more comfortable and desirable solution by countries hosting them such as Bangladesh, Saudi Arabia, Malaysia and Pakistan.
  • UN investigation teams should collaborate with local investigators and international humanitarian personalities, this would be desirable by both international and national communities.
  • Any discriminatory laws, practices or policies should be cancelled or amended.

Conclusion

The Rohingya crisis has been and continues to remain a prominent problem for years. It is a long way to peace but just because that vision seems far away doesn’t mean that it can’t become a reality one day. The agreement between Myanmar and Bangladesh and the ICJ probe by Gambia are steps on the long path which leads its way to its destination- justice. The ICJ, with its righteous jurisdiction and binding decisions, could play a major game-changer and peacemaker.

Authors: Samiksha Maskara from Hidayatullah National Law University, Raipur and Aastha Mittal from National Law University, Odisha.

Editor: Tamanna Gupta from RGNUL, Patiala.

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