Commentary

ROHINGYA’S TRYST WITH JUSTICE: A UTOPIAN ILLUSION DURING THE PANDEMIC

May 10, 2020

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Finding empathy in the age of rage — Image credit: opencanada.org

by Aditya Shekhar and Abhishek Choudhary 10 May 2020

I. INTRODUCTION:

Decades of armed violence, authoritarian rule and state-society conflict has grown its roots deeper into the history of Myanmar. Aung San Suu Kyi, and the noble peace prize which glorifies her struggle for democracy, still breathes an air of hope in the persecuted people of Myanmar. What really shakes the conscience of humanity is the silence of this guardian of peace, who has utterly refused to acknowledge the haunting incidents which are occurring in Myanmar.

While Covid-19 has threatened world economy at large, Myanmar might soon find itself on the darker side of the economic debate. This is a possibility in Myanmar as it is one the poorest economy in the world and it heavily relies on international trade and investment. The upcoming challenges, with economy changing colors, the pandemic positions Myanmar in an inadequately equipped state.

II. THE GENESIS OF ROHINGYA CRISIS, A BRIEF HISTORY:

The Burmese, Rakhine Buddhists and Rohingyas which constitute a portion of minority Muslims have been the locus of the conflict. In 1948, Burma gained its independence. The newly found independence offered equal citizenship to the Rohingyas. General Ne Win’s government made major alterations and that resulted in this Catch-22 situation for the Rohingyas. Burmese nationalism demands for a Muslim-free Myanmar. 1962 marked the capture of the power by the Burmese military. This was the inception of the anti-Muslim activities in the nation. The Ne Win government in 1982 passed a Citizenship Act which categorized its citizens into national, associate and naturalised citizens. 135 “national races” were earmarked for full national citizenship, or those who could successfully establish their ancestry before the first Anglo-Burmese war i.e. 1823. Rohingyas under the 1948 Union Citizenship (Election) Act claim themselves to be an Arakanese ethnic group, as Rohingya is a self-descriptive term. The Rohingyas were excluded as the 1982 act replaced Arakanese with Rakhine. They were consequently bulked as ‘second class associate citizens’. ‘White Cards’ conferred the right to vote on the Rohingyas. However, in 2015 these cards were cancelled and the Rohingyas were forced to strip of their Arakanese identity and were forced to identify themselves as Bengalis. This process razed off the citizenship of 1.1 million Rohingyas living in Myanmar. 2017, recorded the “clearance operation” launched by Myanmar’s military, ‘Tatmadaw’. Under the garb of seeking out recently emerged Muslim militant group, Tatmadaw brutally vandalised civilian population of the Rohingya community. The operation was characterised by war crimes, and crime with genocidal intent. The UN aptly put the incident as “a text book example of ethnic cleansing”.[1] This led to the Rohingya crisis. The Rohingya crisis had the potential to turn into a full-fledged genocide. The crisis has indeed metamorphosed into a genocide which led Gambia to knock the doors of justice at the ICJ.

Gambia and Myanmar have both ratified the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, or the Genocide Convention in popular terms. Article IX[2] of the Convention explicitly gives ICJ a jurisdiction to resolve the disputes between states that have ratified the Convention.

III. THE ROLE OF GENOCIDE CONVENTION AND INTERNATIONAL LAW:

The Genocide Convention has been ratified by 152 states.[3] Genocide Convention is Jus Cogens[4], in other words the convention embodies principles which are a part of general customary international law.[5]

Article II of Convention on the Prevention and Punishment of the Crime of Genocide[6] also known as the Genocide Convention, defines Genocide. Genocide is defined as

“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.”[7]

The most staggering exemplification of genocide is the August 2017, atrocities on Rohingya Muslims. Rohingya Muslims were raped, murdered and their villages smoked down to ashes. These crimes have been thoroughly documented by the United Nations and human rights groups, including Human Rights Watch.[8]

To establish that the Genocide Convention covers that act of genocide, genocidal intent has to be proved. Genocidal intent means intent to destroy a national, ethnic, racial, or religious groups. Although Rohingya’s have been persecuted since a considerable span of time, yet there has been no signs of Justice for them. The definition of Genocide given in Article II of the Genocide Convention[9], narrows down the ambit of genocide which drastically restricts Justice.

Relying on the Belgium v Senegal [10] case at the ICJ (where the Convention Against Torture was the source of obligations), in the words of the court, “It follows that any State party to the Genocide Convention, and not only a specially affected State, may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, and to bring that failure to an end.”[11]

IV. ASEAN AND THE ROHINGYA CRISIS:

The pandemic has unlocked yet another series of atrocities for the Rohingya refugees. Rohingya refugees were denied any shelter by Malaysia and Thailand. In the light of nationwide lockdown to combat the spread of virus, Malaysia has further cemented its take on the Rohingya issue.[12] Bangladesh as a nation has outshined Malaysia and Myanmar in these testing times. It has heroically rescued a bulk of refugees stranded at sea. Bangladesh has been a hopeful asylum for these dejected refugees since 2017. The international reputation earned by Bangladesh is impeccable.

The Civil and Political Rights under the ASEAN Human Rights Declaration through Article 16 gives a person the right to seek and receive asylum. It reads as “16. Every person has the right to seek and receive asylum in another State in accordance with the laws of such State and applicable international agreements.”[13]

Myanmar has consistently dodged accountability and criticism of its deplorable attitude towards the minorities. ASEAN as a group, whose members include Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar. Philippines, Singapore, Thailand and Viet Nam, should justify their principles. The Covid-19 pandemic demands a global approach to militate the present conditions. Rohingya refugees stranded helpless in the middle of nowhere is not a new incident. In 2015, the Rohingya refugees had dealt with the same fate. Malaysia, Thailand and Indonesia had denied asylum to the Rohingya refugees and they met a grisly end. The mentioned right to seek asylum under Article 16 of ASEAN Human Rights Declaration was grossly violated.

V. INDIA’S RESPONSE TO THE PROBLEM:

India stands with clean hands, as Indian did not participate in the “Bali Declaration” in 2017. India is not party to the 1951 Refugee Convention or its 1967 Protocol.[14] In addition to that India lacks a national refugee protection framework. The principle of ‘non-refoulement’ has portrayed India as a guardian of Human Rights. However, the current atmosphere of turmoil due to the recent CAA-NRC debate has invigorated spirits of apathy and fear in the nation. Covid-19 pandemic has immensely added to the misery of the affected minorities in general and Rohingya refugees in particular. In India the Rohingyas are not only asylum-seekers but also economic migrants in search of formal work opportunities.

VI. ANALYSING THE WAY FORWARD:

Rohingya refugees and their concerns seem voiceless. They are a group of stateless people with no legal right to work. Women and Children face gender-based violence and abuse as a result of sharing living space. Child labour has become a norm. These are visible facts of atrocities which have been recorded and published. Unfortunately, where we theorize legal and human rights in bulky academic books of Jurisprudence and papers, no such thing is actually translated in this practical realm. ASEAN has remained mute and paralysed in taking strong measures to eradicate the crisis. This severely questions the sanctity of the organization.

The time limits for memorial submission by Gambia and Myanmar, in the said matter, is fixed by the ICJ, through the order dated 23^rd January 2020. The dates fixed are 23^rd July 2020 for Gambia and 25^th January 2021 for Myanmar.[15] Covid-19 pandemic had yet not released its horror, and thus the ICJ ruling now fails to garner hope for the dejected Rohingyas. While on one hand, the provisional measures released by the ICJ are kept to be followed at the mercy of Myanmar, on the other hand, the pandemic looms over the Rohingyas, who lack basic human amenities to fight the pandemic. If the ‘Tatmadaw’ didn’t wipe out Rohingyas completely, the pandemic will. Myanmar ignoring the plight of the Rohingyas, is all what is need to unleash the horrors. China had threatened veto in the UN Security Council, to support Myanmar.[16] The ICJ Order is a significant decision in International Law and plays a critical role in the future of events yet to unfold. The international community has a challenge to take a stand to protect the Rohingyas from the pandemic and persecution both at the same time. While countries are combating the pandemic, it becomes of utmost importance for the guardian of peace and justice to make a move protecting them.

BIO: The co-authors of this article are Aditya Shekhar and Abhishek Choudhary.

Aditya Shekhar is a sophomore at National Law University, Jodhpur and has keen interest in International Law and Human Rights. He is also inclined towards academic research and has authored a few blog articles.
Abhishek Choudhary is a sophomore at National Law University, Jodhpur. International Law and Economics are his subject of interest. He is has unflinchingly addressed his opinions through various articles authored by him. He is also an avid reader.

[1] https://www.oic-iphrc.org/en/data/docs/field_visits/652137.pdf (last visited on 3/05/2020 at 11:22 IST).

[2] Article IX, Convention on the Prevention and Punishment of the Crime of Genocide.

[3] https://www.un.org/en/genocideprevention/genocide-convention.shtml last visited on 25/01/2020 at 19:40 IST.

[4] https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0124.xml last visited 25/01/2020 at 15:56 IST

[5] https://www.un.org/en/genocideprevention/genocide.shtml last visited on 25/01/2020 at 15:58 IST.

[6] Convention on the Prevention and Punishment of the Crime of Genocide, https://www.un.org/en/genocideprevention/genocide.shtml last visited on 25/01/2020 at 15:40 IST.

[7] Article II, Convention on the Prevention and Punishment of the Crime of Genocide, https://www.ohchr.org/en/professionalinterest/pages/crimeofgenocide.aspx last visited 25/01/2020 at 15:46 IST.

[8] https://www.hrw.org/news/2019/12/05/questions-and-answers-gambias-genocide-case-against-myanmar-international-court#_Why_has_Gambia last visited on 25/01/2020 at 17:19 IST.

[9] Supra Note 2.

[10] https://www.icj-cij.org/en/case/144 (last visited on 29/04/2020 at 15:24 IST).

[11] Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422, https://www.icj-cij.org/files/case-related/144/144-20120720-JUD-01-00-EN.pdf (last visited on 29/04/2020 at 15:40 IST).

[12] https://www.indiatoday.in/world/story/malaysia-turns-back-rohingya-boat-over-covid-19-fears-1668077-2020-04-17 (last visited on 28/04/2020 at 20:23 IST).