This article is written by Atul Alexander. The article deciphers the legal perplexities of Rohingyas crisis.
The historical roots of the Rohingya crisis
The ongoing conflict in Myanmar is reflective of many aspects that the society is heading towards. The suppression of minorities has reached an all-time high in the recent past. The Rohingyas, whose population constitutes 1% of the entire population of Myanmar, have their roots in Ancient Indo-Aryans race. It is also to be highlighted that the Bay of Bengal which was considered a key center for maritime trade and cultural exchange was once ruled by the migrant Rohingyas.
Moreover, the Arabs came in contact with the Rohingyas in the mid of 8th & 9th century. So, culturally and traditionally Rohingyas had a very spread out history and customs. The unabated human rights violations, of these distinct sects have dented the morale of International community as a whole. The oppression of the minorities is a common occurrence in the 20th century, be it the case of the mass massacre of the Jews at the hands of Adolf Hitler or the Genocide in Cambodia, Rwanda and Yugoslavia, the international community has remained as a silent spectator to these vicious acts.
International Law is the branch that offers a healing effect to the crimes committed to the minorities. In this respect one has to view the escalating crimes committed towards Rohingyas under two broad categories namely; Genocide and Crimes against Humanity.
Abuses against Rohingyas – Human Rights Perspective
The role played by the Human Rights Monitoring Committees in supervising the Human Rights abuses in the Rakhine state is self-evident. The Kofi Annan led commissions on Human Rights to enquire into the state of affairs, opinioned, “the Rohingyas were restricted from freedom of movement, education, employment etc, and Human Rights”, along with the reports of several Human Rights Officials describe, terming it as an Ethnic Cleansing, which is quite tangible since the crackdown on Rohingyas were orchestrated on several episodically phases (1978, 1991, 1992, 2012, 2015, 2017), one of the starkling report, by the United Nations Special investigator Yanghee Lee underlined the state sponsored propaganda to wipe out the entire Rohingyas populations, in the other side, the contention placed by the State counselor of Myanmar is that “these groups are illegal migrants from the Bangladesh having dubious track record in terms of terrorist act.”
United Nations on Rohingya crisis
This has been condemned by several head of the states at the recently held 72nd United Nation General Assembly Session. It is not surprising to witness such statements since the General Assembly is a common platform to exude countries customary national interest. Notably, the statements issued by the President of United States, terming the North Korean dictator as Rocket Man is placing national interest of United States above the acute Human Rights Violation across the Globe.
With regard to the gross human rights violation in the turbulent terrain of Rakhine state, the broad segment of applicable law which could be pressed into service are International Humanitarian Law, International Criminal Law, International Human Rights Law, International Refugee Law, which have to be unlocked to get a clear picture on the ground realities.
Rohingyas as victims of genocide under Genocide Convention of 1948
The most appropriate Law in the context of the human rights violation meted out on the Rohingyas is the 1948 Genocide Convention. The peculiarity of the convention is that, Article 1 of the convention enumerates that Genocide could be committed even during peace time.
Secondly, it is a Human Rights Instrument, since the preamble of the convention employs the term humanity. Article 2 of the Genocide Convention lists down the categories of persons on whom the convention would be binding and one such category is religion. Also, one of the paramount fact is that dolus specialise or specific intent as fulfilled which is an essential component of a crime of Genocide.
Historically, the crime of Genocide was codified post world war II. During 1990’s the Rwanda and Yugoslavian Genocide paved the way for a more comprehensive interpretation on the Genocide Convention, albeit majority of Genocidal acts have remained cremated in the minds of the large sections of international actors, which is also true in the current scenario of Rohingyas.
Genocide is considered as a Crime of Crimes as observed in, Prosecutor vs. Jean Paul Kambande, therefore to remain ignorant of the heinous acts in the Rakhine state is absurd. The clenching element that makes it as a case of Genocide is intention to destroy the group in whole or part in Aricle 4 of the Genocide Convention, which makes even the constitutional ruler capable for the act of Genocide. He/she cannot claim immunity by virtue of being the Head of the State.
Rohingyas crisis – Crime against Humanity
Henceforth, the Governmental agencies can be held liable for the acts of Genocide, which is widely touted as an act perpetrated by the Myanmarese Government. The other crime which falls short of Genocide is Crimes against Humanity under which Torture, sexual violence, Murder, Deportation, enslavement would fall, that being the case, anything of a lesser kind would fall under Crimes against Humanity.
The elements of Crimes against Humanity is borrowed from International Military Tribunal, Control Counsel Law no 10, Draft code on Peace and Security of Mankind, International Criminal Tribunal For Rwanda (ICTR) and International Criminal Tribunal for Former Yugoslavia (ICTY) which stands as, it should be targeted against civilian population, widespread and systematic together with the notion that it should be against a common policy.
So, considering these elements, it is perspicuous that Crimes against Humanity is also effectuated in the ongoing conflict. Apart from these crimes that are enlisted in the documents of International Criminal Law, International Humanitarian Law gains momentum in view of Geneva Convention vis-à-vis Additional Protocols.
The Common Article 3 of Geneva Convention, which guarantees minimum protection to the civilian population, has to be noted. The said provision mentions the phrase Right to Life, since life is an embodiment of Humanitarian Law, the killing of civilian population in the Muslim occupied terrain of Myanmar constitutes gross violation of Human Rights and Humanitarian Law. Another major law which is the bone of contention is International Refugee Law which is most fitting law when it comes to migration of Muslim population to Bangladesh and India.
Definition of Refugee under Article 1 of the Refugee Convention, 1951
“A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
The focal point of Article 1 is the fear of persecution, this has to be determined on a case to case basis, when it boils down to the present situation the Rohingyas are to be given the refugee status, since there is a constant fear with respect to extortion, arbitrary taxation, land confiscation, forced disappearance etc., in 2016, the senior officials in Bangladesh accused Myanmar of ethnic cleansing.
Further, one of the cardinal principles of International Refugee Law is the principle of non-refoulement which has attained the status of Jus Cogens. Jus Cogens are norms in International Law, which the nations pledge to abide, irrespective of treaty status, violation of which would entail state responsibility, hence, to refuse safe passage of Rohingyas refugee in the territory of Bangladesh and India is a violation of Jus Cogens principle under Article 32 of the Refugee Convention, 1951.
India has been at the forefront in accommodating Refugees from across the globe, Indian Government has enlisted the categories of Refugees under its Ministry of External Affairs and Rohingyas finds a place in the discourse of Refugees in India, but lately, the stance taken by Government has been controversial.
The external affairs spokesperson has cited development and security as a factor in limiting the number of Refugees entering India, but prior to this statement Indian government has proactively undertaken a mission viz. operation insaniyat to provide relief materials like Rice, Sugar, Salt, Pulses, Oil to the affected refugees. Accusations of Rohingyas being radicalized by the militant groups like Lashkar-e-Taiba, Al-Qaeda has underscored the credibility of refugee to a larger extent.
The statement issued by Minister of State for Home Affairs has been, extremely hypercritical on the movement of Rohingyas refugees in the volatile borders of Bangladesh. India’s refused to sign the Bali Declaration, has clearly demonstrated the position taken by the Indian Government, which is zero tolerance on any insurgent movement to the North-East and a step towards protection of national interest. The Supreme Court of India has directed the executive to play a mediators role in resolving the tensions between the stakeholders.
PIL as a resort to protect the Legal Rights of Rohingyas
In line with that, Public Interest Litigations (PIL) have flooded, to protect the Rights of Rohingyas, Mr. Mohammed Balimuolla a citizen of Myanmar filed a PIL on account of the widespread violence, bloodsheds and Persecution in their home territory. The counter affidavit on the part of the center alleges the draining of countries resources and security threats.
One of the pitfalls of Genocide Convention is that the definition of Genocide is inadequate since it fails to factor in gender, environment and political element, also the Genocide Convention does not provide compensation to the aggrieved victims. Moreover, the Genocide Convention mentions Genocide as a crime having universal jurisdiction the convention per se does not deal about universal jurisdiction.
Myanmar being a sovereign has unilateral control over its territory, the question of fixing the international liability seems farfetched courtesy the doctrine of sovereignty, which is a stumbling block in the enforcement of International Legal Order. The grotesque political framework surrounding the whole episode could be laid to rest by adopting a collaborative approach like increased involvement of International Fact Finding mechanisms, Human Rights Investigatory Agencies, Regional Mechanisms, intervention of United Nations coupled with Security Council’s active involvement to discover an amicable solution.