The Rohingya, Justice and International Law

Kriangsak Kittichaisaree

• Publisher: Routledge
• Year: 2021
• eBook ISBN: 9781000471380
• Edition: 1
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

Written by an international judge, professor and former ambassador with decades of experience in the field, this is an incisive and highly readable book about international law as well as realpolitik in bilateral and multilateral diplomacy in the quest for justice by victims of serious human rights violations amounting to grave crimes of international concern.

Focusing on the plight of the ethnic and religious group of persons called the 'Rohingya', normally residing in Myanmar, as the case study, the book elaborates the complex legal technicalities and impediments in international courts and foreign domestic criminal courts exercising 'universal jurisdiction' in relation to acts amounting to genocide, crimes against humanity and/or war crimes. It builds on and adds value to existing literature on the international law applicable to the protection of human rights as interpreted by the International Court of Justice as well as that on the international criminal justice meted out by domestic criminal courts, ad hoc international criminal tribunals and the permanent International Criminal Court.

The book will be essential reading for students, researchers and academics in public international law, international criminal law, international human rights law as well as government officials and those working for NGOs and international organizations with mandates in these fields.

Part I

Introduction

1 Narratives about the ‘Rohingya’ and their plight

DOI: 10.4324/9781003224211-1

In November 2019, three parallel legal actions were launched simultaneously against Myanmar and/or its leadership after bilateral and multilateral diplomatic efforts failed to alleviate the Rohingya’s alleged plight.

The Gambia has taken Myanmar to the International Court of Justice (‘ICJ’) for the latter’s alleged breaches of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’).¹ To succeed, The Gambia must overcome jurisdictional, evidentiary and other challenges before the ICJ may, if at all, provide redress to the Rohingya through The Gambia.

1 78 UNTS 277, in force 12 Jan 1951.

The Prosecutor of the International Criminal Court (‘ICC’) has officially started investigating possible crimes against humanity perpetrated against the Rohingya by certain Myanmar individuals. Several legal complexities and practical impediments stand in the way of the ICC Prosecutor.

Criminal proceedings against some high-level Myanmar individuals, including Daw Aung San Suu Kyi (‘ASSK’), Myanmar’s de facto Head of Government from 6 April 2016 to 31 January 2021, have been initiated in Argentina, whose law allows the exercise of universal jurisdiction over crimes committed abroad even though the crimes have no connection with Argentina. However, successes in bringing high-ranking foreign government officials who are still in office to stand trial in foreign domestic courts exercising universal jurisdiction are non-existent as of this writing.

These three tiers of parallel legal actions are unprecedented in terms of their spontaneity, and this is the first time a Nobel Peace Prize laureate – in this instance, ASSK who won the Prize in 1991 for her non-violent struggle for democracy and human rights in Myanmar – has been accused in court proceedings of having a role in serious crimes of international concern.² The court of international public opinion seems to have found Myanmar and the Myanmar individuals implicated in alleged atrocities against the Rohingya guilty as charged. However, the Rohingya’s quest for justice in the real world will have to take a long journey through complex legal technicalities in the judicial forums mentioned above.

2 Although there have been calls for Henry Kissinger, a former US Secretary of State and a joint winner of the Nobel Peace Prize in 1973, to be prosecuted for war crimes, crimes against humanity, torture and so forth, he has never been brought before any court of law. See Christopher Hitchens, The Trial of Henry Kissinger (Verso 2001).

Throughout this book, those accused of crimes are presumed innocent until proven guilty in a court of competent jurisdiction and according to due process of law.

Who are the people widely called the ‘Rohingya’?

The 2014 Population and Housing Census – Myanmar’s first national census in 30 years and undertaken by the Ministry of Immigration and Population in cooperation with the United Nations Population Fund – estimated Myanmar’s total population as at midnight between 29 and 30 March 2014 at 51,486,253. This figure includes 50,279,900 people enumerated through the field data collection operation, and an additional estimated 1,206,353 people, based on the Census mapping activity, who were not counted. This estimate includes 1,090,000 people in Rakhine state (where the Rohingya mostly live), 69,753 people in Kayin state and 46,600 people in Kachin state.³ The Census does not record the composition or number of members of ethnic groups living in Myanmar, however. This omission should come as no surprise since ethnic identity and citizenship are tightly interwoven in Myanmar’s ethno-political landscape. On the one hand, successive military-backed governments since 1962, which have been dominated by ethnic Bamar-majority leaders, have viewed Burma/Myanmar as an indivisible ‘unitary State’ bound together by a historic family of ‘national race’ relatives, and with power concentrated in the central plain and river valleys inhabited by ethnic Bamars. On the other hand, non-Bamar groups and organizations have generally regarded ‘ethnic’, ‘nationality’ or ‘national race’ identities as the basis for claims to autonomy and political rights, and have long sought a devolved ‘federal’ system of government.⁴

3 https://myanmar.unfpa.org/sites/default/files/pub-pdf/MyanmarCensusAtlas_lowres.pdf at 10. 4 Transnational Institute, Ethnicity without Meaning, Data without Context: The 2014 Census, Identity and Citizenship in Burma/Myanmar, Myanmar Policy Briefing No 13 (Feb 2014) 3, 6–7, 16.

According to The World Factbook by the US Central Intelligence Agency as of 24 February 2021, Myanmar is projected to have the total population of 57,069,099 in July 2021, comprising the following ethnic groups: Burman (Bamar) 68%, Shan 9%, Karen 7%, Rakhine 4%, Chinese 3%, Indian 2%, Mon 2% and others 5%. It notes that the Myanmar Government recognizes 135 ‘indigenous ethnic groups’. Based on the 2014 Census, Buddhists account for 87.9% of the total population, Christians 6.2%, Muslims 4.3%, Animists 0.8%, Hindus 0.5%, others 0.2% and none 0.1%, although as of December 2019 Muslims probably make up less than 3% of Myanmar’s total population due to the large outbound migration of the Rohingya population since 2017.⁵

5 www.cia.gov/the-world-factbook/countries/burma/#people-and-society.

Linking citizenship and rights to ethnic identity in a hugely ethnic diverse nation such as Myanmar has hardened ethnic divides and driven the proliferation of ethnic non-State armed groups, or ‘rebels’ from the perspective of the Bamar-majority Government. According to the International Crisis Group, there are some twenty ‘ethnic armed groups’ that have political as well as military wings and hundreds, possibly thousands, of armed militias ranging from small village defence forces to entities with thousands of fighters, more powerful than many of the ethnic armed groups, with nearly all of these militias drawn from a particular ethnic community and are generally formed by, or allied with, the Myanmar military (‘Tatmadaw’) and are nominally under its command – although the degree of actual Tatmadaw authority over these groups varies.⁶ A main flash-point is Rakhine state where self-identifying ‘Rohingya’ leaders seek legal recognition for their people as full citizens, whereas no ethnic Bamar or Rakhine political elite, and few among the Buddhist-dominant population in general, appears prepared to consider them as anything except ‘Bengalis’ – meaning an Indo-Aryan ethnic group native to the Bengal region in South Asia – and ‘illegal immigrants’.⁷

6 International Crisis Group, Identity Crisis: Ethnicity and Conflicts in Myanmar, Report No 312/Asia (28 Aug 2020). The location of main ethnic armed groups in Myanmar as of 2016 appears in Appendix B of this Report. 7 Transnational Institute, Ethnicity without Meaning 10–1. See also Jane M Ferguson, ‘Who’s Counting? Ethnicity, Belonging, and the National Census in Burma/Myanmar’ (2015) 171 J Humanities & Social Sciences of Southeast Asia 1; Sarah L Clarke, Seng Aung Sein Myint and Zabra Yu Siwa, Re-Examining Ethnic Identity in Myanmar (May 2019), https://reliefweb.int/sites/reliefweb.int/files/resources/Ethnic-Identity-in-Myanmar.pdf.

In its Order of 23 January 2020 on the indication of provisional measures requested by The Gambia, the ICJ clarifies that references in this Order to the ‘Rohingya’ should be understood as references to ‘the group that self-identifies as the Rohingya group and that claims a longstanding connection to Rakhine state, which forms part of the Union of Myanmar’.⁸ This book follows the ICJ in this respect.

8 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Provisional Measures), Order of 23 January 2020 para 15.

Indeed, most countries refer to the Rohingya as a group of people residing within Myanmar although the Myanmar Government and officials do not refer to members of this group as the ‘Rohingya’. An attempt to stay neutral regarding the identity of this group of people can be found in the work of the Advisory Commission on Rakhine State chaired by former UN Secretary-General Kofi Annan (hereinafter ‘the Annan Commission’). In line with ASSK’s request, the Annan Commission uses neither the term ‘Bengali’ nor ‘Rohingya’, who are referred to instead as ‘Muslims’ or ‘the Muslim community in Rakhine’. This reference does not include the Kaman Muslims, residing primarily in Rakhine state and recognized by the Myanmar Government as among the 135 official ethnic groups, who are simply referred to as ‘Kaman’.

This chapter will present the narratives of all sides in the debate, without prejudice to their respective veracity.

Before proceeding to the narratives of those supporting the claims of the Rohingya that they have been subject to serious human rights violations by the Myanmar Government and the narratives of those who deny such claims, the narrative of the Annan Commission is helpful because it represents the narrative of a body officially approved by the Myanmar Government but under the chairmanship of Kofi Annan, a joint Nobel Peace Prize laureate in 2001, whose integrity and reputation would be seriously undermined should the Commission’s findings and recommendations were not well-grounded.

In September 2016, following a request from ASSK, then State Counsellor and de facto leader of Myanmar,⁹ the Kofi Annan Foundation and the Office of the State Counsellor established the Advisory Commission on Rakhine State, six of whose members were Myanmar nationals and the other three members foreigners (namely, Professor Ghassan Salamé from Lebanon, former Dutch Ambassador Laetitia van den Assum and Kofi Annan). Although the Annan Commission included three international commissioners, it was essentially a national mechanism, being established by the Myanmar Government and reporting to the Myanmar national authorities. It was mandated to examine the complex challenges facing Rakhine state and to propose responses to those challenges. The commissioners consulted widely, engaging with political and religious leaders, civil society organizations and communities across Rakhine state, meeting with Myanmar’s Commander-in-Chief of the Armed Forces; members of parliament; the Central Committee for the Implementation of Peace, Stability and Development in Rakhin; Union ministers; Rakhine state officials; communities of faith; NGOs; Myanmar’s international and regional partners; and individual experts.

9 ASSK was barred from becoming the President of Myanmar because of a provision in the 2008 Myanmar Constitution prohibiting anyone with a foreign-born spouse or children from assuming the Presidency. Instead, ASSK became State Counsellor on 6 April 2016 by virtue of the State Counsellor Act, in force on 6 April 2016, after her party won the general election in 2015. It was the second-highest position of authority after the President and was akin to a Prime Minister. The State Counsellor was accountable to the Union Parliament and could not be dismissed by the President. The term of the office for the State Counsellor was equal to the term of the President. ASSK also concurrently held the posts of the President’s Office Minister and Foreign Minister from 30 March 2016 until the military took over the government on 1 February 2021.

The Annan Commission’s 63-page Final Report entitled Towards a Peaceful, Fair and Prosperous Future for the People of Rakhine,¹⁰ submitted in August 2017, concludes that Rakhine state faces three crises: development crisis, human rights crisis and security crisis.

10 www.rakhinecommission.org/app/uploads/2017/08/FinalReport_Eng.pdf.

According to this Final Report, Rakhine state, separated from the rest of Myanmar by a rugged chain of mountains, has for most of its history been a distinct political entity. The Rakhine kingdom was established in 1430, with its capital in Mrauk U. For the next 350 years, Mrauk U thrived as a prosperous trading hub, until it came under Burmese control in 1784 or 1785. The annexation of Rakhine by Myanmar, then called Burma, was short-lived, as the First Anglo-Burmese War (1824–1826) brought the area under British control and subsequent incorporation into British India. While there had been a Muslim community in Rakhine since before the Burmese invasion, its size increased rapidly during colonial times due to British colonial policies to expand rice cultivation in Rakhine that required a significant number of Muslim workers from Bengal, some of whom settled down permanently, thereby altering the ethnic and religious mix of the area. From the 1880s to the 1930s, the size of the Muslim community (as part of Rakhine’s total population) seems to have doubled, increasing from about 13 to 25%. Since then, the relative increase of the Muslim population has slowed down significantly, and is now estimated to be around a third of Rakhine’s total population.¹¹ For sustained periods, Rakhines and Muslims lived peacefully together in Rakhine. Yet, since the mid-19th century, periods of Buddhist-Muslim cooperation and cohabitation have repeatedly been interrupted by communal tension and armed upheavals. In 1942–1943, during the Anglo-Japanese War at the height of the Second World War, both communities suffered from violence and widespread displacement. In June and October 2012, Rakhine state was again marked by large-scale inter-communal violence, during which at least 192 people were killed (134 Muslims and 58 Rakhines). Destruction to private property was highly asymmetric, as 7,422 out of 8,614 destroyed houses (about 86%) belonged to Muslims. More than 95% of the approximately 140,000 internally displaced persons (‘IDPs’) generated by the conflict were Muslims, of whom around 120,000 still remain in squalid IDP camps. In several areas, most Muslims were forced to leave. At different times – and with varying intensity – both Rakhines and Muslims have sought to advance their political agendas through armed struggle against the central government. Shortly after Myanmar’s independence in 1948, a Muslim ‘mujahidin’ rebellion erupted in Rakhine, demanding equal rights and an autonomous Muslim area in the north of Rakhine. While the rebellion was eventually defeated, the Rohingya Solidarity Organization (‘RSO’) revived the armed struggle in the 1980s, but lost its military potency in the late 1990s. When Harakat al-Yakin (later Arakan Rohingya Salvation Army (‘ARSA’)) attacked government security forces on 9 October 2016, it was one of the largest Muslim attacks on Myanmar government forces in living memory. On the Rakhine side, non-State armed groups of both nationalist and communist stripes have fought the Myanmar Army since independence. At present, the strongest Rakhine insurgency movement is the Arakan Army (‘AA’), an ethnic Rakhine and religiously Buddhist armed group founded in Kachin in 2009, which gradually has expanded its presence and operational capabilities in Rakhine. Over the past years, dozens of Myanmar security personnel have reportedly been killed by the AA. To some extent, inter-communal conflict in Rakhine state is ‘a clash of narratives’, in which both Rakhines and Muslims draw extensively on historical events to legitimize political claims and to demonstrate protracted victimhood and historical injustices. Regretfully, notes the Annan Commission, these narratives are often exclusive and irreconcilable, ignoring the fears and grievances of the other community.

11 The present author: the Rohingya themselves have claimed to be indigenous to the Arakan region before its conquest by Burma. According to this narrative, from the 14th through the 18th centuries, Muslims played a key role in the history of the Kingdom of Arakan due to the close contacts between Arakan and neighbouring Bengal, which had become Muslim in 1203. Arakan Muslims are Sunnis who call themselves ‘Rohinga’, ‘Rohingya’ or ‘Roewengya’. See Moshe Yegar, Between Integration and Secession: The Muslim Communities of the Southern Philippines, Sou...

Table of contents

• Cover
• Half-Title
• Title
• Copyright
• Contents
• Preface
• Abbreviations
• PART I Introduction
• PART II The International Court of Justice: State responsibility
• PART III The International Criminal Court: Individual criminal responsibility
• PART IV Justice in foreign domestic courts
• PART V Stock taking
• Index