INTRODUCTION
The Rohingya genocide and humanitarian crisis are two of the most worrying weaknesses in the international legal and political system of the 21st century. The crisis, which resulted from protracted ethnic, religious and sociopolitical conflict in the Myanmarese State of Rakhine, has drawn global attention as a result of the violence, displacement, and gross human rights violations suffered by the Muslim minority group, the Rohingya.1 The Rohingya’s institutional exclusion has spanned decades, and has included failed efforts to obtain citizenship; restrictive travel policies; lack of access to education and health care; and various targeted military operations culminating in what many countries and experts consider to be genocidal. Despite a number of international condemnations, over half a million males, women, and children remain in refugee camps, mostly in Bangladesh, as well as in other neighbouring countries, where they live in dangerous and uncharted situations, with no legal status.2
In 2017, the Myanmar military began “clearance operations” in response to the inclusion of the Arakan Rohingya Salvation Army (ARSA), which is responsible for police checkpoint assaults. This was the disastrous point of turning. Rather than take necessary security precautions, the military resorted to indiscriminate brutality in the form of extrajudicial killings, massacres, CSVillage burnings and forced displacement. Over 700,000 Rohingya refugees fled into Bangladesh in the space of a few months, triggering one of the biggest refugee crises in recent history. Having meticulously documented these atrocities, the UN Independent International Fact-Finding Mission on Myanmar found that the Tatmadaw (Myanmar military) had undertaken the “genocidal intent” to destroy the Rohingya people.3 This has elevated the issue from one of inter-communal violence to one of international criminal justice: a legal and political shift that fundamentally changes the way we view the situation.
The crisis raises doubts about the adequacy and relevance of international refugee law in response to humanitarian crises caused by acts of genocide and ethnic cleansing4. Refugee law, as it exists today, is codified in the 1951 Refugee Convention and its 1967 Protocol , which is used to provide protection to those fleeing persecution after the second world war.5 However, the Rohingya crisis reveals the inadequacies of these laws to address situations in which a group fleeing has no citizenship and is fleeing atrocities perpetrated by one’s own government. The exclusion of citizenship and Myanmar’s unwillingness to recognize the Rohingya as a sub-group also leaves them highly vulnerable and in a legal vacuum, leaving them with little to no protection in Myanmar law. This puts the responsibilities of host states, the role of international humanitarian agencies and the customary international law notions of responsibility to protect people into serious question.
HISTORICAL BACKGROUND
The plight of the Rohingya must be addressed in the context of the historical progression of the Rohingya crisis in Myanmar, which is concentrated in the Rakhine (formerly Arakan) State.6 Their subordination is not a novel phenomenon; it is the result of a long history of institutionalized bias, ethnic chauvinism, political alienation and socio-religious tensions that are ingrained in contemporary Myanmar’s political fabric. The Rohingya issue is a complex interaction of military authoritarianism, citizenship policies, post-independence nation building, colonial legacies and ethnic biases. It is important to understand this trajectory to contextualise the current allegations of genocide, and the constraints posed by international refugee assistance law.
The Rohingya are Muslims residing in north Rakhine State. However, they have been living in the coastal area bordering present-day Bangladesh for centuries. Accounts of Muslim communities in Arakan can be found in the writings of travellers, local chronicles, and British colonial documents, long before the foundation of modern Burma. While their presence has been consistent, however, their identity has been heavily politicised, with successive governments in Myanmar labelling them “interlopers” from Bangladesh and denying their indigenous origins.
The most significant change to happen after that is the 1982 Citizenship Law, which stripped the Rohingya of citizenship. This law established three types of citizenship: full, associate and naturalized. To become a citizen, one needed to prove ancestry from before 1823 (the year before British colonialism). The government’s refusal to accept the Rohingya as a recognised ethnic group and deny access to historical documents meant many Rohingya lost their citizenship status. This institutionalised people’s exclusion by refusing them official protection, ID cards, and citizenship. Statelessness has continually been a core element of the Rohingya crisis, affecting all subsequent incidents of persecution and displacement.7
INTERNATIONAL CRIMINAL LAW PERSPECTIVE
To understand the Rohingya crisis, it is necessary to understand international criminal law, which underpins the legal basis for identifying and prosecuting the most serious crimes of concern to the international community, such as war crimes, crimes against humanity, ethnic cleansing and genocide. How each of these legal terms’ thresholds and evidentiary requirements determine the ways particular acts are categorised and how they may be dealt with. The Myanmarese situation begs the question of how these criteria apply and whether the actions of the Tatmadaw and the Myanmarese government amount to crimes against humanity and ethnic cleansing instead of genocide. This chapter addresses these issues in depth from international treaties, law and reliable reports.
To do this, we first need to understand the definition of genocide as per the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). According to Article II of the convention, genocide is any of number of listed activities that are undertaken with the intention to destroy, in whole or in part, a group of people on the basis of national, ethnic, racial or religious identity. These include killing members of the group, causing serious physical or mental harm to members of the group, deliberately creating living conditions for the group that will bring about its destruction, imposing measures intended to prevent births within the group, and forcibly transferring children of the group to another group.
With respect to the Rohingya, there is significant evidence of ethnic and religious discrimination. In a report released in 2018, the UN Independent International Fact-Finding Mission on Myanmar found the Tatmadaw had committed acts of genocide. The report pointed to the deliberate acts to destroy the Rohingya as a group, mass killings, rapes and burnings of villages. It also noted the statements of military officials that dehumanised and presented the Rohingya as a threat to the country’s national identity. These instances are important in providing evidence of the acts and intent required to prove genocide under international law.
The International Court of Justice (ICJ) also weighed up the situation in the 2019 case of The Gambia v. Myanmar. The Gambia brought a case on behalf of the Organisation of Islamic Cooperation (OIC) alleging a breach of the Genocide Convention by Myanmar. In January 2020, the International Court of Justice (ICJ) issued provisional measures requiring Myanmar to cease any act of genocide, safeguard potential evidence, and provide compliance reports. The Court’s acceptance of jurisdiction and its provisional measures indicate that it is likely that there is a credible allegation of genocide, despite the case not being finalised. The ICJ’s actions are a major step towards justice and reflect the seriousness with which the international community treats the matter.
But it is still a difficult legal exercise to prove genocide. The test for genocidal intent has been formulated by the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY).8 This standard requires the дока demonstration that the perpetrators had the intention to destroy the group concerned. In Prosecutor v. Akayesu,9 the ICTR further explained that the intent might be gleaned from discriminatory statements and policies, the scale of the atrocities, the targeting of victims by reference to their group identity, and the circumstances. When such factors are applied to Myanmar, there are several indicators of genocidal intent: widespread, coordinated attacks targeting villages inhabited solely by Rohingya, the creation of adverse living conditions, and statements made by military and state officials.
However, for some international actors and academics, even when considering the brutality of the atrocities, they may be more easily classified under the crime of crimes against humanity, which does not rely on the intent to destroy a group. Crimes against humanity, the definition of which is outlined in Article 7 of the Rome Statute of the International Criminal Court, include murder, enslavement, deportation, imprisonment, torture, rape, persecution, enforced disappearance and other cruel acts committed with knowledge of a systematic or widespread attack on any civilian population. All of these factors are evident in the Rohingya situation.
INTERNATIONAL REFUGEE LAW ANALYSIS, STATELESSNESS, PROTECTION GAPS, INTERNATIONAL MECHANISMS, COMPARATIVE PERSPECTIVES, AND CHALLENGES TO ACCOUNTABILITY
The Rohingya crisis is a crisis for the international refugee protection regime – it brings to the fore flaws in international legal frameworks that are designed to deal with massive displacement resulting from genocide, ethnic cleansing and crimes against humanity. The Rohingya persecution highlights the shortcomings of the 1951 Refugee Convention, statelessness, the anomalies of burden-sharing and the role of international and regional institutions.10 This chapter briefly addresses these multiple aspects in understanding these interconnected issues, by offering a review of the international refugee law, the vulnerabilities of statelessness for the Rohingya, the role of international and regional bodies such as UN High Commissioner of Refugees (UNHCR), International Court of Justice (ICJ), International Criminal Court (ICC), Association of Southeast Asian Nations (ASEAN), and the Organisation of Islamic Co-operation (OIC), comparison with other mass atrocity displacement cases such as Rwanda and Bosnia, and existing challenges in achieving accountability.
In terms of the analysis of International Refugee Law, the main source of international refugee law is the 1951 Convention Relating to theStatus of Refugees and its 1967 protocol that set the definition of a refugee and the obligations of the States towards those fleeing persecution. Article 1A(2) of the Convention states that a person is a refugee if they’re unwilling and unable to use the protection of their home country because they have a fear of being persecuted on the basis of race, religion, nationality, political opinion, or membership in a particular social group. The Rohingya fit the bill perfectly: they are not offered official status because the Myanmar government specifically targets them; and they are persecuted on the basis of race and religion.
International refugee law rests at its core upon the principle of non-refoulement, which is set out in Article 33 of the 1951 Convention and prohibits countries from returning a refugee to a place where he or she will be deprived of liberty or subjected to risk of death. This is a principle that even non-member states are bound by; it has been accorded the status of customary international law. This, in principle, gives Rohingya refugees a degree of protection. This concept has been maintained in spite of Bangladesh’s limited resources by the provision of refuge to more than a million Rohingya, although Bangladesh is not a party to the Convention.
The Rohingya are one of the largest stateless populations in the world when it comes to statelessness and protection gaps. Their status as stateless people renders them more vulnerable and diminishes their access to international protection. The Rohingya were removed from the list of ethnic groups in the 1982 Myanmar Citizenship Law and were categorised as “interlopers” in Myanmar, without citizenship. Statelessness restricts access to health services, the right to travel, to own property and to stand for election. Statelessness also leaves the person in a legal no-man’s land and the state is not required to protect them.
International laws that apply to statelessness include the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, of which Myanmar is not a member. It also limits the protection that many of the Rohingya refugee-hosting countries are not parties to these conventions. The UN High Commissioner for Refugees (UNHCR) obligates countries to uphold their right to recognition and protection of stateless people, but it does not mandate that they do so, leading to uneven responses.
Stateless individuals are able to bypass human rights and refugee law which creates this gap. Refugee law does not provide any specific protections for stateless persons outside of the usual refugee definition, and human rights law does not provide enforcement measures to force states to recognize or grant stateless communities.
Now, when it comes to the work of various international and regional organs (UNHCR, ICJ, ICC, ASEAN, OIC etc, we can infer more.
UN High Commissioner for Refugees (UNHCR) has played a crucial role in providing humanitarian assistance in Bangladesh.11 It has provided protection advocacy, relief assistance and camp management. But UNHCR has a limited mandate. It cannot compel states to host refugees or hold them accountable for crimes. Access to Myanmar is still constrained by the lack of co-operation from the government. As well, UNHCR cannot halt the root causes of the displacement, decades of persecution and statelessness.12
The IC play’s a small but important role Although Myanmar is not a member of the Rome Statute, the ICC has decided to take jurisdiction over the deportation as it took place partly in Bangladesh.13 Yet, the ICC cannot investigate and prosecute the murders, rapes and other crimes that have taken place exclusively in Myanmar, other than through a UN Security Council (UNSC) referral, which is unlikely given the current global geopolitical environment. As a result, there are limits to what the ICC can do.
ASEAN has had limited success. Under its policy of non-interference, ASEAN has not openly condemned Myanmar. Humanitarian visits and statements have been devoid of substance. Its principle of preserving state sovereignty is a key deterrent for it to regard the crisis as a humanitarian tragedy. The Myanmar government’s political situation, particularly the military’s role, has also limited ASEAN’s ability. 14
The OIC has had a positive impact in providing support for The Gambia at the ICJ and maintaining the issue as a priority.15 However, it has a diplomatic rather than enforcement role. The willingness of OIC member states to take in Rohingya refugees is mixed, with some even taking actions such as turning away refugee boats. These organisations collectively demonstrate the fragmented nature of global governance; while each of these mechanisms plays a role, no one is equipped to tackle the problem in its entirety.
COMPARATIVE ANALYSIS (BOSNIA, RWANDA ETC.)
The Rohingya crisis has many similarities with mass displacement and genocides of the past, such as those recently in Rwanda and Bosnia. The 1990s Bosnian ethnic cleansing led ultimately to the Srebrenica massacre and involved massacres, mass rapes and expulsions. A lagging international reaction resulted from political arguments, but the ICTY established strong accountability mechanisms. Equally, the Rwandan genocide showcased the glaring weaknesses in proactive intervention, but it also resulted in the formation of the ICTR, which contributed substantially to the development of the law of genocide. This, however, is not the case with the crisis in Myanmar.16 There is no international ad hoc tribunal, international peacekeeping troops, or investigation committee supported by the Security Council. While the Rohingya crisis does not have the level of international consensus demonstrated in Bosnia and Rwanda, it shares the most similarities with Bosnia and Rwanda in terms of community targeting and ethnic expulsion.17
Moreover, both Bosnia and Rwanda received UN-backed post-conflict nation-building and repatriation initiatives while Myanmar continues to have an uncooperative military government. Comparing these historical events reveals the failure of the international community to draw inferences from past genocides to help avoid or abate the Rohingya tragedy.
LEGAL AND POLICY RECOMMENDATIONS
The Rohingya atrocity and humanitarian crisis expose major flaws in the international legal and political framework. The crisis has shown that current mechanisms, such as international criminal law, human rights law and refugee law, still struggle to prevent mass crimes and offer durable solutions for refugees and stateless persons. Consequently, reform needs to take place on both the legal and policy levels, nationally, regionally and on the global stage. This chapter offers a range of legal and policy solutions to improve international refugee protection practices, prevent statelessness, improve accountability, and build effective institutions to deal with mass displacement in the context of genocide.
While the 1951 Refugee Convention remains important, situations like massive ethnic cleansing expose its weaknesses. To offer protection to vulnerable groups such as the Rohingya, governments need to build supporting systems and approaches to sort through the issues.
First, a binding global responsibility-sharing agreement must be developed. The Convention lacks provisions for countries to fulfil their obligation to share responsibility during collective disasters. An international treaty that may be administered by the UNHCR should formalize burden-sharing through financial assistance, quotas and resettlement programs. This approach would encourage international responsibility-sharing, while diffusing the dual burdens on host countries such as Bangladesh.
Second, governments should use the doctrine of a prima facie refugee determination in the context of mass flows resulting from ethnic cleansing or genocide. This would allow for processing refugees without lengthy status determinations to get prompt protection. UNHCR has already called on states to do this, yet more must be done for it to become established.
Third, we need regional refugee bodies, such as in South Asia. South Asia does not have a regional organisation, unlike Latin America with the Cartagena Declaration and Africa with the robust OAU Convention on Refugees. The Rohingya crisis underlines the need for a South Asian refugee regime that is not discretionary and places binding obligations on states.
CONCLUSION
The Rohingya genocide and associated humanitarian disaster and refugee crisis constitute one of the most disturbing defects in the law and governance of the 21st century. The tragedy shows how systemic political marginalisation and ethnic nationalism can result in atrocities. It is rooted in a history of decades-long state-sponsored violence, as well as systematic statelessness and historical discrimination. The escalating persecution of the Rohingya, which has been affected by military crackdowns, discriminatory national legislation and policies that are aimed at denying their existence, demonstrates a pattern of mistreatment that goes beyond periodic warfare to form a sustained campaign of annihilation. This history is crucial for today’s crisis as it reveals a longer history of marginalisation and dehumanisation that ultimately led to genocide.
This research affirms the idea that existing international refugee law is unable to solve complex crises such as mass displacement, genocide and stateless populations. The shortcomings of the 1951 Refugee Convention; the lack of global enforcement power; the lack of a duty to share the burden; and the lack of binding rules on statelessness all result in a system which delivers elusive justice and no protection for the Rohingya.
Finally, the Rohingya crisis is a stark reminder that, despite the normative force of international law, it is not institutionally or politically coherent and effective to prevent and redress mass violations. Given these constraints, there needs to be an urgent reassessment of global refugee protection, the enforcement of accountability, and the creation of equitable mechanisms for distributing refugees. Without these changes, the international community will continue to breach its obligations under the Genocide Convention, international refugee law and human rights law by locking the Rohingya in a deadly cycle of persecution and displacement.
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Footnotes
1. Amartya Sen, Statelessness and the Rohingya Crisis, 44 Harv. Int’l Rev. (2018)
2. Guy S. Goodwin-Gill & Jane McAdam, The Refugee in International Law (3d ed. 2007).
3. Penny Green, Thomas MacManus & Alicia de la Cour Venning, Countdown to Annihilation: Genocide in Myanmar, 43 Int’l State Crime Initiative (2015)
4. William A. Schabas, Genocide in International Law (2d ed. 2009)
5. Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267.
6. David Scheffer, The Rohingya Crisis and the International Criminal Court, 52 Case W. Res. J. Int’l L. 1 (2020)
7. Susan Kneebone, Refugees and Displacement in Southeast Asia, 12 Asian J. Int’l L. (2017).
8. Prosecutor v. Krstić, Case No. IT-98-33-T, Judgment (Int’l Crim. Trib. for the Former Yugoslavia Aug. 2, 2001).
9. Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment (Sept. 2, 1998)
10. Convention Relating to the Status of Stateless Persons, Sept. 28, 1954, 360 U.N.T.S. 117.
11. UNHCR Executive Committee Conclusions on International Protection, various years.
12. U.N. Human Rights Council, Rep. of the Independent International Fact-Finding Mission on Myanmar, U.N. Doc. A/HRC/39/64 (2018).
13. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90.
14. ASEAN Human Rights Declaration (2012).
15. Organisation of Islamic Cooperation (OIC), Statements on Rohingya Crisis (2019).
16. Fortify Rights, They Tried to Kill Us All (2018).
17. Amnesty International, “We Will Destroy Everything”: Military Responsibility for Crimes Against Humanity in Myanmar (2018).