The Rohingya Genocide: Are The Doors Of The World Courts Still Open for textbook example of ethnic cleansing?
By Ms. SAMEENA SYED
The world is waiting and the Rohingya Muslims are waiting
- Malala Yousafzai
In the world, where peace and prosperity is the prime goal along saving the Humankind against all kind of violations has been on the global watch for several centuries. While government of various nations constantly take adequate measures in restoring the same. Has the world encountered with its needs of humanity yet?
At this moment, several questions might arise in the mind of the readers of this blog, for example,
Is HUMANITY really restored?
Are the organs of the world working well enough to REINSTATE the same?
On this note I would like to draw your attention to the on-going crisis, Humanity towards the community of Rohingya Muslims has been long forgotten one and the community has been battling a constant combat in winning their citizenship and identity back. Is this what the world community is willing to see being in the era of woke generation? Absolutely not. Every single individual is entitled protection in all forms and so are the Muslims of the community along with millions of others who are facing such persecution on a daily basis. In this blog I have addressed the issue of Genocide Crisis as it’s the need of the hour to understand how a “so called governmental measure” of a state can lead to an international catastrophe.
Background Of The Rohingya Community:
Myanmar is a Buddhist dominated kingdom which has been the home for various culturally enriched ethnic groups. The nation is divided into 14 administrative assemblies with diverse ethnic and religious groups. The religious and ethnic split up of the nation is as follows[i]:
Rohingya Muslims are part of the Arkan territory which is at present referred as the territory of Rakhine and their history dates back to the eighth century. The Rohingya Muslims qualify as people and do have the right of self-determination under international law, Even though no international treaty defines the term “people”, it is generally accepted that this classification entails a subjective element, such as a common belief by members of the group that they share the same characteristics and beliefs and thus form a common unit, as well as an objective element, such as common racial background, culture, ethnicity, religion, language, and history[ii]. The violation against the Muslim community in Rakhine is not a newly evolved trend by has been viewed for a very long time since 1960s where violations were frequently caused to the community for their virtues.
The Saga Of Statelessness: The NRC Of 1949 And Citizenship Amendment Of Myanmar 1982:
The government of Myanmar introduced Burma Registration Act in 1949 by means of which the citizens of the state can register themselves with the government along with authenticated documents and National Registration Card shall be given to the individuals of the state which unilaterally declares them to be the citizens of the nation. The Rohingya Muslims were also registered by the government and the said NRC was given to the community as per law. However in 1982 the government introduced the Citizenship Amendment Act which paved way for providing citizenship through conclusive proofs and identities under three heads which are full citizenship, associated and naturalized. The Rohingya Muslim community weren’t recognized under any of the above mentioned classification which stripped them from their citizenship despite being indigenous community in Myanmar. Furthermore Article 1 of the 1954 Convention relating to the Status of Stateless Persons, provides that a stateless person is “a person who is not considered as a national by any State under the operation of the law”[iii]. Thus by operation of law by way of NRC combined with the Citizenship Amendment Act rendered the Rohingya Muslim community stateless in the eyes of international law as they were no longer associated with the nationality of Myanmar.
The unsung heroes of clearance: Heads of the state
Military coup d'état in Myanmar has an over empowering reach throughout the state and has shown discriminatory based violations on the community as a whole. The persecution of the Rohingya community was a military lead act under the headship of Min Aung Hlaing, the commander in chief of the army. The troops entered the territory of the citizenshipless-community and ransacked the Rohingya Muslims by burning houses, causing deaths and harm, raping women and children and what not. The operation to torture the Muslims was known as “Operation Clearance of 2017” under the pretext of “eliminating militants, who attacks government institutions”. The violation caused by governmental head and the state of Myanmar is well fitted in the realms of genocide which indeed infringes the duty of the state under the Genocide Convention as well as under customary international law and various other obligations that are enshrined in several International Human rights and Humanitarian law instruments, which are of supreme importance to the international community. The International Court Of Justice in its well renowned case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide[iv] observed that in order to view a violation of genocide both the elements of crime must be satisfied i.e., Actus reas and Mens reas. In other words the acts should have been carried out with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.Which is also reinstated in the genocide convention[v]. Both has been satisfied in this matter. Due to the persecution faced,the Muslims fled their mother-land by foot walking miles and swam across oceans seeking shelter in neighboring states of the world. At present majority of the refuges are located in Bangladesh. United Nations Humans Rights Council (UNHRC) criticized methods adopted by the state and called the actions of the government as “systemic discrimination” and “Textbook example of ethnic cleansing”. However while these heinous crimes against humanity was constantly taking place in the land, the state-Head,Aung San Suu Kyi maintained her silence throughout which not only raised agitation regarding the situation in the world community but also raised a lot of eyebrows.
The battle for humanity in the world courts:
The violations and crimes were never ending and that is when the state of Gambia( Non- injured state) filed an application against Myanmar for breach of obligations under the Genocide convention. However there is a huge question that needs to be analyzed which was taken into consideration by the International Court of Justice [ICJ] ,i.e Will the court have jurisdiction to entertain the case brought by Gambia against Myanmar? In addressing the same two vital moves of Gambia must be noted, which are as follows
1. Invocation of Article 9 of the genocide convention before the ICJ
2. Claims based on breach of erga omens obligation which are customary international law principles.
It is to be noted here that Gambia submitted the application to the ICJ invoking Article 9 of the Genocide convention and Myanmar has not made any reservations to Article 9 which reads as follows,
“Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute”.
On basis of the same, as per the convention, it was observed that the ICJ has jurisdiction over the case against Myanmar as it is clear from Article 9 of the convention that any state party to the convention can bring up a claim to the ICJ.
Not only that, the claims were based on the breach of erga omens obligations which are customary international law principles and so the ICJ affirmed jurisdiction even though Gambia is not an injured state in the present dispute. The same was previously attested in the ICJ case of Belgium v. Senegal[vi] while dealing with crimes against torture. Thus on the basis of the above discussed the ICJ acknowledged the jurisdiction in the dispute.
ICJ after dealing with the question on jurisdiction moved to the remedy sought by Gambia in the present matter. The state of Gambia knocked the doors of the court to declare that the state of Myanmar has breached the obligations of the Genocide convention and also to cease the ongoing persecution along with holding the heads of the state responsible for the genocide. Not only that the state also has asked the court for the lawful return of the Rohingya muslims and to restore their citizenship.
The court addressed the same and passed a provisional order asking Myanmar to stop all violations and acts which are construed as Genocide under International law and also to take back the Rohingya community along with the same, Myanmar was asked to submit the detail reports of its compliances with the order. ICJ’s order is legally binding on the parties and also shall be supervised by the UNSC by virtue of Art. 41(2) of the ICJ statues. But only time will tell if Myanmar shall actually look into the orders of the court as the case awaits it final disposal and judgement.
Meanwhile the matters came up for discussion in the International Criminal Court [ICC] as well. A point to be noted here is that ICJ shall hear and adjudicate claims between two nations and shall hold a state responsible for its action. Whereas the ICC shall note the claims against the heads of the state and shall hold them responsible for their individual criminal conduct. However, Myanmar isn’t a party to the Rome statue of the ICC which becomes difficult for the ICC to confer jurisdiction over the case under Art. 13 of the statue unless referred by UNSC by means of Art.15. But the Pre-Trial Chamber one of the ICC ruled the follows which was considered path breaking and conferred jurisdiction over the matter.
“If an element of a Rome Statute crime takes place in the territory of a State Party to the Statute, the ICC will have jurisdiction over such crimes, regardless of whether other elements took place in the territory of a non-State Party.”
Following the jurisdictional order the prosecutor of the case submitted a request on par with the Art.54 of the Rome statue to open investigation against Myanmar, subsequently the Pre-Trial Chamber Three allowed the requested and asked the prosecutor to carry out the investigation as there was reasonable belief of crimes against humanity.
As the world courts have conferred jurisdiction on the present matter and projected its preliminary remarks on the dispute, the questions,
Will the state be held responsible for the genocide against Rohingya?
Will the heads of the states be conferred with criminal liability and punished in the eyes of International law?
Shall be answered only in due course when the courts of the world deliberates on the merits of the case.
Now drawing parallels to the situation of Rohingya Crisis, Will India be taken to the courts of the world soon due to its newly enforced law on citizenship? It sure is an Open ended question but I leave it to the readers of this Blog to ascertain the same as the UNHRC has already sent a letter to the government of India which has addressed rather shown regrets on the operation of the enforced law.
[i] Kiener R (2012) Myanmar’s New Era, Will the military allow reforms to continue? C Q Researcher, pp: 329-352. [ii] Michael P. Scharf, Earned Sovereignty: Judicial Underpinnings, 31 DENV. J. INT’L L. & POL’Y 373, 373–79 (2003). [iii] Convention relating to the Status of Stateless Persons, adopted 2 July 1951, G.A. Res. 429 (V), 360 U.N.T.S. 117. [iv] Bosnia and Herzegovina v. Serbia and Montenegro. [v] The Convention on the Prevention and Punishment of the Crime of Genocide UNGA A/RES/3/260. [vi] ICJ Judgment of 20 July 2012.