Recurrence of Systematic and Widespread Persecution of Rohingyas: A Thorn on the Global Conscience | 2017-10-31 | daily-sun.com

Recurrence of Systematic and Widespread Persecution of Rohingyas: A Thorn on the Global Conscience

M. Amir-Ul Islam, Barrister-at-Law

    31 October, 2017 12:00 AM printer

Recurrence of Systematic and Widespread Persecution of Rohingyas: A Thorn on 
the Global Conscience

M. Amir-Ul Islam, Barrister-at-Law

Tracing the history and background of the present crisis in Myanmar:


The Rohingyas are part of the populace of Myanmar with distinct civilisation and culture, having a history over 1200 year old heritage, having antiquity, tradition, establishment and sanctuaries of their own. They are original inhabitants of Arakan (now known as Rakhine State). It is located on the western coast of Burma (now called Myanmar), comprising of a strip of land along the eastern coast of Bay of Bengal linking Naf river on the border of Chittagong to the cape of Negarise, having a total area of over 36,762 square kilometres having approximately a population of 3,188,807.


Arakan had been an independent kingdom for many centuries, due to its geographical location with brief and occasional breaks, ruled by various legendary Indian dynasties during the 8th century when the first Muslim settlement was established in Arakan through trade and commerce during the period of rapid Islamic expansion eastwards into the kingdom of Asia. Muslim settlers in Arakan began to coincide, being descendants of the Muslim Arabs, Moors, Persians, Turks, Mughals and Bengalis mixing with the local people (predominantly Hindus and Buddhists), thus creating another hybrid race – the present stock of people now known as the Rohingyas.  The coastal kingdom of Arakan, by then became an independent entity distinct from Myanmar, and started looking towards the Muslim kingdoms in the West for trade and commerce. In the process of history, with flourishing trade, commerce and mobility it formed the bulk of Arakan Ethnicity. During the 11th century, Arakan was consolidated having become a part of Burma.


Prior to the 19th century, Burma was a monarchy ruled by various dynasties. In the late 19th century, British colonised and ruled Burma (Myanmar) as part of India (since 1937) which led to a major demographic shift which gradually begins to impinge on the religious and ethnic factor. The heartland of Bamar (the dominant ethnic group in Myanmar) was directly administered by British, while ethnic regions outside the heartland were granted some measures of self-governance along the line of native states of India under British Rule. This further led to split allegiance among various ethnic minorities such as Rakhine, Kachi, Chin, Kayin, Kayah, Mon, and Shah among other ethnic minorities including Rohingya.


The Bamars, having approximately sixty-eight per cent of the population, developed intolerance and aggressive attitude towards local Indians (mostly Hindus and Buddhists) by 1931. At the same time, a new community of foreigners developed side by side during the British Rule. On the other hand, Muslim settlers who earlier came from the subcontinent widen the country’s community, marrying Buddhists and converting them and their off springs constituting Muslims who were perceived by Bamars as factors diluting the bloodline. All of these factors contributed to a sense of inferiority as well as insecurity among Bamar Buddhists to whom it seemed that not only their livelihood being drained by foreigners  but  also  “that actual land of Myanmar was being lost and with it not just the economic worth it carried  but the emotional attachment Bamar had to it” , as recorded in a research by Francis Wade (Wade, 2017).  This added another element for such resentment due to demographic changes as the strength of new foreigners, if remained unchecked, might demolish Buddhist values that for long, established as a bed rock for Myanmar society.
During World War II, many members of the Bamar joined Japanese hoping to overthrow the ruling British forces; whereas other ethnic groups for instance, Arakans joined the British against Japanese invaders upon a promise from British to grant them autonomous entity in return. During the colonial era, sporadic communal fissures began to raise its head among the inwards Arakanese on the basis of ethnicity, further generating religious tensions between two major Arakanese ethnic communities.  The Rohingyas, mostly the believers of Islam, used to be the majority population in Arakan, while the Rakhiangs (Maghs) practising the cult of Buddhism was the minority population in Arakan.  


“The Arakan, before 1942, has been occupied over its entire length by both Rohingyas and Maghs. During the 1942 anti-Muslim rioting, the Muslims of southern Arakan had been pushed to the north whereas the Buddhist Maghs took over the southern half of the country where they now form majority.”


This transition of Buddhist Maghs from being Minority to Majority started oppressing Rohingyas who eventually become a minority population of Arakan. All of these shifts gave rise to a major conflict between these two ethnic groups that never ceased to stop ever since, and perhaps grew from worse to the worst form of violence that continues till today.


Tracing its societal history back as far as 2666 BC, the ethnic origin of Rohingya, can neither be traced from invaders nor from the migrant in Myanmar. It is in fact Myanmar who occupied the land of Arakan in 1974, where Rohingyas have been living from time immemorial. 

 

 

It is unfortunate that Arakanese Muslims are called Rohingyas; whereas ‘Rohingya’ is not a new term nor newly adopted. ‘Rohingya’ identification has a long historical background evolving into Roang  /  Rohang / Roshang to ‘Rohingya’ from  the old name of Mrohuang as much as names of the cities in Myanmar such as Rangoon to Yangon, Akyab to Sittwe, Arakan to Rakhine, Burma to Mynamar have been changed.  As part of the local dynamics in evolution, Arakan has thus integrated in the process of history which has become a part of the newly independent union of Burma in 1948. Anti-state element in post independent Burma since its new constitutional framework treating and conceding to  the Military as Supreme Power, who began treating the Rohingya as a separate Ethnic race as part of their policy for divide and rule.


Even though, in 1974, Ne Win government’s new constitutional framework granted Rakhine (Formerly Arakan) as an integrated unit achieving the status of a ‘state’ of the Socialist Republic of Union of Burma, duly designated as the homeland of the Rakhine people, the military administration of Myanmar (Burma) in 1982 by citizenship law abolished citizenship of Rohingyas in 1982, rendering Rohingyas as ‘Stateless’ within the State.As is now evident, democracy could never mature in fruition in Myanmar. Despite attaining independence, Rohingya fell victim of the ingrown fascist practice fuelling ethnic and religious divides, introduced under the Military Rule, resulting political alienation, economic exploitation and cultural slavery in their own ancestral land. Such divides suited the military power to divide and rule.


Eventually they became victim of genocide which took its worse form of bloodbath in August 2017 in the name of Systematic ‘Ethnic Cleansing’ Operation led by the Military force in Myanmar.


 Demise of Democracy in Burma Since Its Inception:


Whilst the end of the colonial rule in India, Burma negotiated it’s independence in London on 27 January 1947 through an agreement with the British Government, signed by a democratic nationalist leader, Aung San, guaranteeing Burma’s independence within a year. Another agreement at the Panglong Conference held on 12 February 1947 was signed by Aung San himself along with leaders from other national groups, aspiring solidarity and support for a united Burma.


Aung San became the Prime Minister of the British Crown Colony of Burma from 1946 to 1947 and on 19 July 1947, became Deputy Chairman of the Executive Council of Burma during a transitional government. Prior to six months of Myanmar’s independence as a republic since known as the ‘Union of Burma’ on 4 January 1948, Aung San who is considered the leading architect of independence, the founder of the Union of Burma and recognised as the Father of the Nation of modern-day Myanmar was assassinated by his Political Rival Gelon U Saw, who was also the former Prime Minister of British Burma during the colonial era, served as the Deputy Chairman of the Executive Council of Burma.


In July, 1947, the prospect for such autonomy along with the aspiration for a viable democracy was nipped in bud when Gelon U Saw, not only killed the apex leadership of freedom movement but also brutally extinguished the democratic practice and popular role of the then democratic leaders consisting of six cabinet ministers, cabinet secretary and a bodyguard while they were in an Executive Council session in progress, thus destroying the political and administrating leadership at the top. Since then the original tragedy took place in the history of Myanmar. This continues to haunt Myanmar not having been allowed to establish its’ political stability by way of fragmenting the society by fuelling and formulating ethnic and religious conflict and divides.


In May 1948, Gelon U Saw was executed by hanging under the Burmese Court for the assignation of Aung San for being the master mind of this mayhem assassination of Aung San along with his top colleagues in leadership.


This was the beginning of the doom for democracy in Myanmar which sustained only as a very short-lived aspiration.


Ever since this tragedy in the history of Myanmar, it has been governed by a non-democratic regime headed by military elites in a divisive society giving rise to tension, disharmony, discrimination and conflict prevalent in the body politics of Burma, further creating new divides on the line of religion and ethnicity giving rise to a fascist tendency playing the dominant role now deep-rooted in absence of a homogenous polity in Myanmar.

 

As a consequence, people lost all their rights and opportunities for exercising their collective role in formation of the government nor the elected body even if ever can form a government it is reduced to tutelage of the Armed forces. The country has since been predominantly controlled under Military administration, that continues till today under the so-called ‘democratic shallow’.


For most of its post colonial era, the country has been engrossed in rampant ethnic strife. From the time of signing Burmese Constitution in 1948, followed by Union Citizenship Act 1948, one of the first discriminatory national laws that were ever passed, limiting Burmese citizenship to the eight ethnicities identified as ‘indigenous races of Burma,’ a list that did not include the Rohingya for no valid reasons. The Rohingya appealed for the promised autonomy, which continues to be denied till today. Purporting to alienate them as foreigners, Rohingyas were denied Constitutional rights, and the government began confiscating Rohingya properties.


Refugee Crisis: A By-product of Autocratic Military Rule


Following a coup d’état in 1962, Myanmar became a military dictatorship when Ne win assumed the power and created a new constitution based on an ‘Isolationist Policy’. There was a deliberate attempt to register citizens of Burma, which resulted in expulsion, and alienation of thousands of Rakhine. Ever since, Rohingya along with other unregistered minorities have been facing abuse, domination, exploitation, persecution, deportation, forced labour, killing, rape and inhuman torture in the name of “Ethnic Cleansing”. Subsequent waves of thousands of Rohingya fled to neighbouring countries i.e. Bangladesh, Thailand and Malaysia.


In 1978 again, 250,000 refugees inundated Bangladesh as a result of inhuman persecution known as “King Dragon Operation” in Arakan. New Burma Citizenship Law, 1982 rendered the Rohingya ‘stateless’. A continuous process of systematic and widespread violations of basic human rights and violence against Myanmar’s ethnic minorities including Rohingyas were reported by the United Nations and other organisations which caught global attention.

 


Myanmar has since suffered many military crackdowns in 1978, 1991 and in 1992 and until now. Nationwide Popular Pro-Democracy Protests (also known as the People Power Uprising in 1988) resulted in Burmese general election in 1990. A short lived elected government in Myanmar was hindered by a military intervention, further led to a renewed influx of refugees in 1991-92 when approximately 250,877 (quarter million) Rohingyas entered Bangladesh. Another major influx of Rohingya refugees took place in 1996 (10,000) and then in 1997 (7,000).


Short-lived Struggle for Democracy: Nipped in the Bud Whenever About to Sprout


Against this backdrop of chronic and continuing persecution, there was a ray of hope kindled during the People‘s Democracy Movement and the 1988 Uprising through which Aung San Suu Kyi, daughter of the Founder of Modern Myanmar, Aung San emerged as a national icon, fighting for reinstatement of his father’s faith in Democracy, campaigning for democratic values to be brought back to Myanmar.  Military junta arranged an election at last in 1990, Suu Kyi’s party, the National League for Democracy, won 80% of the seats in the government (392 out of 492).

 

The Military junta refused to acknowledge the results and continued to rule the country under the head ‘State Law and Order Restoration Council’.
Aung San Suu Kyi was imprisoned so was the short lived dream and for democracy. “Suu Kyi was under house arrest for 15 of the past 21 years. She was first arrested by Burma’s military government in 1989 and held under house arrest until 1995. She was placed under house arrest a second time in 200o and released in 2002. The military junta, the State Peace and Development Council (SPDC), detained her for a third time in 2003 after an attack on her convoy while travelling in the country. Her house arrest order was extended by another year in May 2008, and it was expected to be unlawfully extended again in May 2009.” Under a heavy international campaign and pressure, the military rulers were compelled to release her on 13 November 2010. She was put under house arrest on each and every turn when any form of democratic initiative was undertaken.


Even though, in 2011 when the Military Junta/ Dictatorship was officially interrupted for a while following 2010 general election, and a nominally civilian government was mounted, along with the release of Aung San Suu Kyi and other political prisoners, but there was no change for improvement in sight of Government’s treatment towards ethnic minorities, nor any step for preventing religious clashes. It suits the military elites to keep the people divided.


The dominant military rule, would sabotage any such possibility for unity and demolished at its root by suppressing any liberal views or any notion of democracy at the brink of physical persecution. Dividing people on the basis of ethnicity and religious divides as part of hate campaign used as the weaponry triggered by the Military regime, for perpetuating authoritative rule. It has since become part of a grand design that never allowed people to be united on a secular ground nor could ever gather strength or opportunity to rise against autocratic military rule. This led to annihilation of group of people, particularly forcing the Rohingyas to leave the country on the peril of humanity costing their lives and security. Similarly, cleansing of ethnic minorities was part of this systemic operation side by side strangulating the process of democracy at its infancy by the Military Rulers.


Oppression against Rohingyas continued to outburst and every time it was suppressed with more regressive measures.  Rakhine State riots in 2012 followed by Anti-Muslim Riots in 2013, 2014 Mandalay Riots, Riots in 2015, 2016 Mosque burning,  to  Rohingya refugee crisis and persecution in Myanmar (2016-present) are not any isolated move; it is a part of series of tragedy being the outcome from the denial and deprivation of democracy as well as a part of the Military strategy for suppressing the liberal or democratic aspiration of people at large.

 

People of Burma are kept busy in conflict and racial hate campaign founded by the Military regime continued to accelerate in several manners, so that people can never assimilate as united towards harmonious polity. Society is thus never free from strife, unrest, conflict, and devastation.

 

It appears to have become a museum of dehumanisation process, where people are as a whole victim of military dominance in all forms of civic life.


Burmese military continues to remain the most powerful and supreme force and factor in governance, yet after a seemingly landmark 2015 election in which Aung San Suu Kyi‘s party, NLD won a majority in both houses of representatives in the Burmese Assembly of Union, namely ‘Pyidaungsu Hluttaw’, but Myanmar’s democratic transition merely remain in form and soon become heavily derailed because of corruption being rampant and widespread.


 Ethnic violence remains ingrained, need for economic reform profoundly indispensable are areas totally neglected. Crucially, the military, or Tatmadaw (official name of armed forces of Myanmar) as a whole, continues to reign supreme as the only mighty force in the country. Tatmadaw is administered by the Ministry of Defence and comprises of the Army, the Navy and the Air Force. Incidents upon Rohingya since 1948 till date suggest that the Tatmadaw is responsible for reviving the War on Terror.


In fact, it is  Tatmadaw that governs Myanmar to this day while hiding behind Aung San Suu Kyi as a figurehead, has likewise began persecution on Rohingya on ethnic and religious issues resorting to systematic Ethnic Cleansing Operation. The 2008 constitution of Myanmar was written by the military junta in such a way having four provisions that limit the NLD’s power.


“First, it assigns the Tatmadaw 25 per cent of all seats in both houses of the legislature. Second, it requires a majority of more than 75 percent to approve any constitutional amendment. Third, it prohibits anyone with a foreign spouse or child from becoming president, a provision likely written with the president of the NLD and long-time opposition leader Aung San Suu Kyi in mind: Her children are British citizens. And finally, the 2008 constitution continued to give the Tatmadaw control of three key ministries: border affairs, defence, and home affairs”.


In essence, one can say, Myanmar is currently experiencing an amalgam of military rule captivating Assembly of Union, not being able to exercise any democratic authority on any administration without the concurrent nod of the Tatmadaw.  This has been a consistent pattern in Myanmar ever since Aung San was assassinated in 1948. It is believed that any slow transition in regaining democratic force implicates longer years or decays that Myanmar has recently been facing to a degree it never encountered before.


As the Former Prime Minister of Australia, Kevin Rudd, described in New York Times, defining the crisis in Myanmar related to Rohingya Issue is that “The military also hopes to undermine Ms. Aung San Suu Kyi in the eyes of the international community, where she is seen as too weak in her defence of the Rohingya. The military has been succeeding in this, even though she has been largely powerless to act, given the legal, constitutional and real politik constraints she is facing.


The international community, therefore, faces a dual crisis of its own: First, an enormous humanitarian emergency in Rakhine State. Second, a military strategy manufactured to undermine Ms. Aung San Suu Kyi’s standing at home and abroad, and to pave the way for a return to a form of military rule”.


By frustrating the purpose of general election held in 2015, along with millions of Ethnic Minorities, Aung San Suu Kyi also falls a victim of ‘ambivalence’ and this dual crisis under Myanmar’s Anti-Democratic drive remains  in force in Politics. Challenge remains on the international community that needs to work on a strategy as to how to bring back the refugees in their homes and hamlets and rehabilitate & compensate the loss caused to their family, lands and crops.  Further efforts need to be given in order to ensure, a democratic elected government to be so freed and rescued from the captivity it suffers in the hand of military rulers. Otherwise, it will remain only a temporary eye wash for pacifying the international community.


Exodus of 2017: Rohingya at the Brink of Mass Genocide


Ethnic Rohingyas have long undergone decades of discrimination and disenfranchisement in Myanmar, albeit never to the degree they are currently facing. They are denied citizenship in their own ancestral land, forced to leave their crops on the cultivating paddy fields, having their hamlets burnt to ashes and loving families for generations, have now lost, along with all that is granted by the haven on this earth.


The most current and continuing exodus was flickered by a military crackdown following an alleged raid by Rohingya insurgent group, the Arakan Rohingya Salvation Army (ARSA), formerly known as Harakah al-Yaqin,  at police posts in Myanmar’s Rakhine state on August 25, 2017, to which the Burmese military force responded with the ongoing “clearance operations.” One Fleeing Rohingya says “security forces shot indiscriminately, burned their homes and threatened them with death. The government says hundreds died, mostly Rohingya, and that 176 out of 471 Rohingya villages are now abandoned”.

 

 


Myanmar military’s systemic attack in the name of “clearance operations” against the Rohingya Muslims in Rakhine state on August 25, 2017, that left over 3,000 dead, thousands more injured, tortured or raped, villages burnt.


According to High Commissioner for Human Rights, United Nations, Zeid Ra’ad Al Hussein, ““The “clearance operations” in Rohingya started before 25 August 2017, and as early as the beginning of August. The apparently well-organised, coordinated and systematic nature of the attacks carried out by the Myanmar security forces against the entire Rohingya population across northern Rakhine State has led to a mass exodus of more than 500,000 people fleeing to Bangladesh. The testimonies gathered by OHCHR indicate that the attacks against Rohingya villages constitute serious human rights violations. As recalled by many victims, the security forces and the Rakhine Buddhist individuals incited hatred, violence and killings against the Rohingya population within northern Rakhine State through extremely derogatory abuse based on their religion, language and culture and ethnic identity. There are indications that violence is still ongoing at the time of writing this report.”


As estimated in a report of National Geographic published in September 28, 2017, “More than 580,000 Rohingya have fled to neighbouring Bangladesh since August of this year the flow of refugees continued to flee away witnessing their home and hearth being burnt, are often seen as the background of the column of the refugees shown on the international channels. Although the crisis has intensified in recent months, the targeted, sometimes violent, discrimination of this minority group is anything but new.”


Unfortunately, it is not “just Rohingya Muslims, Hindus too fleeing to Bangladesh”. One refugee Akhira Dhar sittings in stony silence in one corner of the makeshift camp for Rohingya refugees in Ukhia, Bangladesh describing her experience said to a new reporter that “She has seen her husband and in-laws being hacked to death. Masked men armed with guns and machetes beheaded them after they looted everything the villagers had. That they were Hindus, minorities among the Rohingyas, didn’t matter. In the Rakhine state, violence and persecution obliterated religious boundaries. Hindu women were raped and killed before their villages were burnt. At Fakir Bazar, the village where Akhira was married into barely a year ago, the masked men did not spare a single male member. The blood and gore that she witnessed still numbs her.

 

“Hadifelay (They kill everyone),” she murmurs. How she, carrying a four-month life in her womb, managed the crossing across the hilly terrain and jungle tracts braving wild animals is difficult to comprehend but she did finally make it to Merinja opposite Naikhong Chari in Chittagong. Here, she is now housed in Hindupara, a Hindu settlement within the Kutupalang Camp in Bangladesh”. Countless Rohingyas on the way have already perished and many drowned in the sea. On the other hand, children of Rohingya were not spared from witnessing heinous attack, torture, rape and killing of their own parents before them.  Majority of refugee plunging Bangladesh are children — “60 per cent, by U.N. estimates. And at least 1,100 are separated from their parents”.


Whilst there are closely related terms between by which genocide and ethnic cleansing is committed, this paper emphasises on reasons why Rohingya crisis overwhelmed the definitions of Genocide according to the International Law.


Genocide In the Name of Ethnic Cleansing


From the very birth of Myanmar as an independent country, the seeds of disharmony and destruction in the name of religion and ethnicity coupled with violence, assassination, destroying political leaderships pulled the way for hate, divide and destruction, as a consequence of which, socio-political and economic distortion has multiplied the crisis, which has become a ‘Live Volcano’. Present exodus is such a seasonal eruption in form of a large scale of persecution with a potential risk of destabilizing the region, a phenomenon of crisis cannot be stopped or be eradicated without a superior legal authority under international law by holding an enquiry followed by trial.


Mobilisation of global opinion, based on International Laws and jurisprudence on genocide must be pursued by academics and jurists across the globe. Global initiative towards holding a trial of this chronic disease that is deep-rooted in form of fascist practices in a widespread and a systematic manner committing crimes against humanity over a period of nearly 70 years, have become an imperative for the international community to find a way for prevention of further recurrence of these crimes, which, if not stopped might ultimately destroy the prospect for economic stability in Myanmar as advanced by Kofi Annan in the ‘Final Report of the Advisory Commission’s on Rakhine’ State dated August 2017 (Hereinafter referred to as ‘the Final Report’ as discussed below).


The decade long massacre against Rohingya can no longer be termed as “textbook example of ethnic cleansing” as recently termed by Zeid Ra’ad al-Hussein, United Nations High Commissioner for Human Rights, while addressing UN Council in Geneva. The present situation rather ought to be termed as the ‘Clinical Illustration of Genocide”


Understanding Genocide in Myanmar:


The term ‘genocide’ was first coined by a Polish jurist, Raphael Lemkin, who confounded from witnessing the devastation of the Holocaust in Rwanda, and subsequently campaigned for Genocide to be recognised as a crime under international law. He defined it as “the destruction of a nation or an ethnic group”, further identifying that “Genocide has two phases: one, the destruction of the national identity of the oppressed group, the other, the imposition of the national identity of the oppressor.”


The United Nations Convention on the Prevention and Punishment of the Crime of Genocide, adopted by Resolution 260 (III) A of the United Nations General Assembly in 1948 which was notably ratified by the state of Myanmar in 1956, codified as the notion of genocide. This was later incorporated in the Rome Statute for the International Criminal Court in 1998, Article 6 of the Rome Statute defines “genocide” as “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”. Lemkin and the Convention identified a distinctive feature of genocide, in which, perpetrators aims to destroy a group rather than the individuals who creates the group along with an ultimate purpose to destroy the group’s identity. A useful insight into the workings of modern power systems comes to light from this idea, particularly as the state of Myanmar, now under scrutiny.

 

In substantiated facts as are now on record within the full view of the world including the satellite pictures along with past records of Burma’s military Junta of recent Rohingya crisis, it is apparent that the general intent of the Myanmar government has always been to extinguish the identity of minority groups such Kachin, Rohingya and other religious groups


Once the destruction of Rohingya (even if at different stages on different occasions) being the general and common target, the intention is obvious, and the facts as revealed would fall within the definition of genocide under the Genocide Convention. There is a need for identifying three of the five practices of the UN Genocide Convention applied with the ‘specific intent to destroy’ the Rohingya population in whole or in part, namely:


(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.

 


Persecution of minorities including the Rohingya in Myanmar has been incessant since 1962 when a military coup was installed. Such systematic operation of Myanmar’s military groups against Rohingya since 1978 resulted in mass murder, rape, arson, destruction of their houses, mosques, sanctuaries they have built since their inception. The persecution process was expedited over the course of time, reaching its peak when the recent deadly oppression and pogroms took place in August 2017. On top of the denial of citizenship, the Rohingyas have been subjected to such atrocious state-sponsored human rights abuses in form of forced displacement, forced labour, restricting freedom of movement and confinement in the Concentration Camps, denying citizenship under fascist regulation, committing rape and other sexual violence, extra judicial killings, arson, extortion, police harassment, land confiscation, arbitrary taxation, inequitable marriage regulations, a two-child-limit family planning policy, exclusion from Human Rights denying access to jobs, education and healthcare, and eviction and destruction of their homes and hamlets of Rohingyas in a systematic manner which is widespread targeting Rohingya Population in Myanmar. There were serious restrictions on Rohingyas freedom of movement for which they require official authorisation to move between, places from one place to another, limiting movement between dusk to dawn reminds one of the apartheid era of South Africa. As a matter of fact apartheid practices in Myanmar are even worse than what was practiced in South Africa. Violation of such onerous and time-consuming procedures to secure travel otherwise would result in arrest and prosecution.


It was becoming more difficult for the long Persecuted Rohingya to survive when they encountered restrictions on their daily life activities causing grievous Human Rights crisis, post Military riots on Rohingya in 2012 when approximately 120,000 people were held incarcerated  in concentration camps as Internally Displaced People (IDPs) who were denied freedom of movement,  political representation and all other basic rights. The condition of the camps was uninhabitable having no food, water, electricity or sanitisation.  


These incidents are adequate to prove that perpetrators have the “intent to destroy in whole or in part” a group based on its nationality, ethnicity, race or religion.


Genocide Emergency Alerts for Myanmar have been issued annually by Genocide Watch since its founding in 1999, with major updates in 2006, 2012, 2013, 2015 and 2017, at times during unending genocidal exterminations. The Rohingya are being targeted much like the Tutsis minority of Rwanda, who have been targeted for destruction by the extremists of the Rwandan Hutu ethnic majority group under the facade of a war.


A ten-stage model by Genocide Watch identifies the processes that lead to genocide, some or all of which might occur simultaneously. It provides a logical paradigm for uncovering the early warning signs of genocide and comprehension to adopt the strategy on how to prevent it by counteracting it at each stage, which are as follows:.


“Classification divides the society into “us” versus “them.” The Rohingya and Kachin are classified as non-Burmese ethnic groups, with religions other than Buddhism. Most Rohingya are denied citizenship. The 1982 Citizenship Law holds that only members of the 135 groups named in the law that were deemed to be in Burma prior to 1823 can be citizens.


Symbolization provides ways to identify the groups. Rohingya and Kachin speak their own languages, have their own clothing, and have their own places of worship. The identity cards that Rohingya once held were taken away in 1989, and new ID’s have only been issued to around 4000 Rohingyas on the condition that they say they are “Bengali,” validating the government’s false narrative that they are immigrants from Bangladesh.


Discrimination against Rohingya includes denial of government jobs, health care, education, and confiscation of land and property.


Dehumanisation includes propaganda that Rohingya are jihadists, terrorists, murderers, and thieves. The leader of the 969 Movement, Monk Ashin, Wirathu, has said that he wants to lead a campaign to purge Burma of all Muslims -“starve them to death, make them homeless.” He was jailed for his involvement in burning alive an entire Muslim family -a well- to-do grocer and a Haj returnee- in his birthplace.


Organisation includes the 969 movement, extremist orders of monks, and the Tatmadaw government army and police. They carry out the murders and disappearances, torture, rapes, and arson of Rohingya villages.


Polarization has resulted in creation of concentration camps for Rohingyas and separation of them from the Rakhine Buddhist population.


Preparation has included planning for aggression and arson against Rohingya villages, and recently the build-up and invasion by large numbers of Tatmadaw troops in Rakhine state, with trucks and heavy weapons.


Persecution [itself a crime against humanity] has included forcing the Rohingya into concentration camps, denying them medical care, food, and water, torture, and mass rape. Many Rohingya have fled in rickety boats and large numbers have drowned while fleeing.


Genocidal massacres have resulted in thousands of deaths. Starvation and death from disease in concentration camps, especially of children and the elderly, have cost thousands of lives. Births are restricted through limits on family size to two children. Others cannot get birth certificates, a violation of the Convention on the Rights of the Child, to which Myanmar is a state-party.


Denial permeates government statements, including the statements of Aung San Suu Kyi. The UN Commission of Inquiry, UN Special Rapporteur and other neutral observers have been barred from the country. “

 


It is clear that all of the above ten stages are manifest in the treatment of the Rohingya in Myanmar. The Rohingya are systematically discriminated against having denied citizenship, rights to vote, employment, to health care amongst other Constitutional and Human Rights.

 

Persecution is flagrant, as Rohingyas are denied freedom of movement, had their dwellings burned, and have been tortured, raped, and beaten.


Denial always runs throughout the genocidal process as Myanmar government have refused to acknowledge the violence against Rohingyas as genocide nor as Ethnic Cleansing that have been taking place for decades whereas the denial continued to increase when Aung San Suu Kyi joined the chorus of Burmese deniers after her release from house arrest.


However, Genocide Watch is only effective when the policy makers can use it.


The International State Crime Initiative (ISCI) at Queen Mary University of London report refers explicitly to the Rohingya Muslim community of the military-dominated Southeast Asian nation Myanmar, as has been systematically persecuted and expunged from the national narrative - often at the behest of powerful extremist groups from the country’s majority Buddhist population and even government authorities at length by way of involving its Military forces in such a manner where complete extermination is a incontrovertibly concluded that “The Rohingya face the final stages of genocide”. ISCI uses notes of genocide expert Daniel Feierstein’s framework of the six stages of genocide, outlined in his 2014 book “Genocide as Social Practice” as a lens through which to view Myanmar.Through interviews with stakeholders on both sides of what it describes as ethnic cleansing, as well as media reports and leaked government documents, the report enumerates how the Rohingya have experienced the first four stages of Genocide: (stigmatisation and dehumanisation; harassment, violence and terror); isolation and segregation; systematic weakening-and are on the verge of “mass annihilation.” The sixth stage, which involves the “removal of the victim group from collective history,” is already under way in many respects, the report says. However, as Rohingya faced its deadliest attack in its history erasing over 90% of Rohingya from Rakhine State occasioning mass killing of thousands innocents and force them to flee an exodus of more than 500,000 from Myanmar in addition to 900,000 already fled before 2017 out of 1.1-1.3 millions of Rohingyas who used to live in Rakhine State, it is no doubt that Myanmar has crossed the final i.e. sixth stage of Genocide as quoted above by Daniel Feierstein.


To a Further note, Matthew Smith, the founder and executive director of Bangkok-based non-profit Fortify Rights, also tells TIME, “The abuses that the Rohingya are experiencing are at a level and scale that we have not seen elsewhere in Southeast Asia,”


These incidents not only fall under the definition of Genocide but also indicated the very likely commission of crimes against humanity (as the High Commissioner concluded already in June 2016) under the definition of  Crime against Humanity under the Rome Statute in which Article 7 defines “crime against humanity as “ any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b)     Extermination; (c)     Enslavement; (d)     Deportation or forcible transfer of population; (e)     Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f)     Torture; (g)     Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h)     Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i)     Enforced disappearance of persons; (j)     The crime of apartheid; (k)     Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” .


Choice of Terms: Ethnic Cleansing or Genocide?


Whether the term ‘Ethnic Cleansing’ or ‘Genocide’ is used, it bears no nexus to the number of people who are killed. By way of example, approximately 8000 innocents were killed at Srebrenica which was termed as “genocide” by the ICTY, whereas a U.N. Commission of Inquiry ruled that over 100,000 killed in Darfur (now exceeding 300,000) was not sufficient evidence for the intent to be required to commit genocide by the government of Sudan.


Therefore, willingness to take action to stop the killing required selection of the appropriate term for which the terms “ethnic cleansing” or “crimes against humanity”, when used, tends to indicate a certain unwillingness of the UN to take stringent action to stop the crimes. It is categorically vigilant from history that weaker or less weighty terms are first preferred because the decision whether or not to use force depends whether the word “genocide” is applied to the crimes, for the force to be sent to stop it.


A good example of this came to light three months into the genocide in Rwanda, when the US State Department finally acknowledged on 10th June 1994 that the “acts of genocide” in Rwanda were the same as “genocide”. This declaration came after the US had voted in the UN Security Council to pull United Nation Assistance Mission for Rwanda (UNAMIR) troops out of Rwanda on 21st April 1994 and voted against deploying UN forces in May the same year, as the extermination went on. By June 1994, the Rwandan Patriotic Front won the civil war and stopped committing genocide.


Much like the occurrences of Genocide in Rwanda, “Rohingya are being targeted much like the case of the extremists of the Rwandan Hutu ethnic majority group planning to destroy the Tutsis minority, under the cover of war, under the cover of a facade, that no one is questioning”.


Bosnia also witnessed the same fiasco, calling the killing “ethnic cleansing” until the Srebrenica massacre in mid-July 1995 provoked a NATO conference on July 21 ultimately occasioning NATO bombing of Serb forces on August 30, which convened Serbia to Dayton in order to agree to a ceasefire, division of Bosnia, and a NATO peacekeeping operation. As a result, the civil war in Bosnia came to an end. The ICTY and International Court of Justice declared the massacre at Srebrenica (Bosnia and Herzegovina) as genocide.


War in Kosovo was also referred to as “ethnic cleansing” up until David Scheffer, US War Crimes Ambassador, noted “indicators of genocide” on April 7, 1999, followed immediately by bombing of Belgrade, which brought NATO occupation of Kosovo and ultimately Serb surrender.


In regard to Massacre in Darfur, Colin Powell, US Secretary of State on the base of an empirical survey of evidence of genocide among Darfur refugees, on 9th September 2004, declared that “genocide has occurred and may still be occurring in Darfur” where the evidence corroborates the specific intent of the perpetrators to destroy “a group in whole or in part.” However, there was no direct military intervention by NATO or the US although the International Criminal Court has charged Sudanese President Omar al-Bashir and two others responsible for genocide in Darfur, they have never been arrested and brought to trial. The investigation is still going on.


Ethnic Cleansing is a rewarding or euphemism for forcible displacement, which as an official term, first came into wide usage in the 1990s in the instance of describing mayhems and atrocities that involved forcible removal of minority groups during the out-break of Yugoslavia It is not a term used in the Rome Treaty of the International Criminal Court, nor a criminal charge in international law. “Ethnic cleansing is much more about the removal of particular group from a particular territory, often in border-regions of states seeking to rid themselves of what they believe to be undesirable populations.”


On the other side, “this very act of ethnic cleansing can lead to the destruction of the group’s population, or a part of the group’s population, which would then amount to genocide.”

 


In 2005, the UN’s ‘2005 World Summit Outcome’  included ‘ethnic cleansing’ along with ‘genocide’, ‘war crimes’ and ‘crimes against humanity’ as four atrocities that states have a duty to protect their populations from. UN Security Council Resolution 1674, adopted by the United Nations Security Council on 28 April 2006, “reaffirms the provisions of paragraphs 138 and 139 of the “2005 World Summit Outcome Document” regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity”.


Choice of Terms makes a massive difference while defining and describing the crimes committed in terms of finding a permanent solution to be brought against any atrocities, perhaps by way of bringing the crimes in the court of law .When the term “genocide” is used to describe crimes against humanity, use of force is possible. It is an indicator that there is a lack of political will to take any effective forceful action to stop crimes when the crimes are only called “ethnic cleansing” or “crimes against humanity” instead of referring it as “ genocide”. It is precisely genocide that the Myanmar government and supporting militias are committing against the Rohingya: they are committing both “ethnic cleansing” [forced displacement] and genocide despite the fact that these crimes go often hand in hand. And admittedly, there is a clear intention to destroy the ethnic group, Rohingya.


It is inconvertibly true that Genocidal massacres are used to terrorize a victim group into fleeing to another place. It may only be an oversight that so-called “international community” (which exists only as a mythology) is making such omissions failing to call the Rohingya Violence as the acts of “genocide”.


Permanent Peoples Tribunal’s (PPT) finds Myanmar guilty of genocide:


Myanmar has been held guilty of the crime of “genocide” against the Kachin people and other ethnic minority including Rohingya by an International people’s tribunal on the 22nd September 2017. Former President of the International Association of Genocide Scholars, Daniel Feierstein who is heading a seven-member bench of Permanent People’s Tribunal (PPT) has proved its case beyond reasonable doubt in a unanimous voice.


“On the strength of the evidence presented, the tribunal reached the consensus ruling that the State of Myanmar has the intent to commit genocide against the Kachin people and the other Muslim groups. Further, the State of Myanmar is guilty of the crime of genocide against the Rohingya group. Moreover, that genocide against the Rohingya is now taking place with ongoing act ‘genocide’; and the possible of casualties of genocide could be even higher in the future if nothing is done to stop it,” as the judgment reads.


After hearing and analysing arguments by the prosecution, views of the expert witnesses and victim’s testimonies throughout a five-day trial held at, the faculty of Law, the University Malaya, the bench including other six judges comprised of Zulaiha Ismail (Malaysia), Helen Jarvis (Cambodia-Australia), Gill H. Boehringer (Australia), Nursyahbani Katjasungkana (Indonesia), Shadi Sadr (Iran) and Nello Rossi (Italy) arrived at the decision on 22 September, 2017.


The judgment unfolds that “systematic targeting of civilians” and other acts committed by the Myanmar Army must be qualified as war crimes as well as Genocide. Further, the heinous crimes to destroy the Rakhine and other communities of Arakan committed by the Burmese army and the Military regime in power in the State of Myanmar have remained unpunished. It is reiterated by Mr Feierstein in his judgment, as follows:


“(with intention) …to deny every expression of autonomy and self-government of the people of Kachin state and, more generally, to humiliate and to destroy the ethnic and cultural identity of minorities living in Burma,”


The Permanent Peoples Tribunal is an international opinion tribunal founded in Bologna (Italy) in 1979 which has by far held 43 sessions on numerous cases of violations of human and people’s rights across the globe.


Role of International Community: Protection Under International Law


Long before the establishment of the United Nations (UN) in 1945 the international community has subscribed to a number of international treaties which provide protection for human rights. There have been many crimes of genocide, war crimes and crimes of extreme brutality beyond humanity namely The Nanjing Massacre in 1937 and the Rwanda Genocide of 1994 and the violence against East Timorese in the ’90s. Although the individuals responsible for committing these crimes have been punished accordingly, the incidence of crime against humanity have yet to end as it is still taking place in Libya, Sudan, Syria, Iraq and worse still, just within the region of  “Myanmar”.


The outbreak of the Rakhine State Riot 2012, 2015 and lately in 2017, the issue of Rohingya has become one of the key topics discussed lately both on their status as refugees and the crimes committed against them. This issue has recently worsened when many of the Rohingya migrants left their “homeland” in Myanmar seeking refuge in neighbouring countries, such as Bangladesh, Thailand, Indonesia and Malaysia. It is time to take in account of the crisis to further length as to how the perpetrators of the crimes of genocide committed against the stateless Rohingyas are to be brought to justice as part of the global commitment for humanity through an organized measure and campaign by way of taking cognizance to prosecute the perpetration of crimes committed against Rohingya.


Legacy of Domestic Trials of International Crimes: Criminal Tribunal:


There are a number of international criminal tribunals established by the UN Security Council (UNSC) such as in Timor-Leste for the crimes committed during Indonesia’s invasion of that territory in 1999 and in Cambodia during the Khmer Rouge of Pol Pot’s regime in 1975 to 1979.

 

However, these tribunals were established through agreements between UNSC and the respective Governments of Timor-Leste as well as Cambodia.


Nuremberg Trial: The Nuremberg trial in 1945, held in the German city of Nuremberg, allied power initiated the first international war crimes trial. The choice of the city was significant for it was here that the National Socialist Party held its annual rallies.


Tokyo Trial: The International Military Tribunal for the Far East (IMTFE), also known as the Tokyo Trials, was convened on April 29, 1946, to try the leaders of the Empire of Japan for three types of war crimes such as “Class A” crimes for participated in a joint conspiracy to start and wage war, and in the highest decision-making bodies; “Class B” crimes and for committing “conventional” atrocities or crimes against humanity; “Class C” crimes for those in “the planning, ordering, authorization, or failure to prevent such transgressions at higher levels in the command structure.”

 

Twenty-eight Japanese military and political leaders were charged with Class A crimes, and more than 5,700 Japanese nationals were charged with Class B and C crimes, mostly entailing prisoner abuse. China held 13 tribunals of its own, resulting in 504 convictions and 149 executions.

 

The prosecution term was made up of justices from eleven Allied nations: Australia, Canada, China, France, and Great Britain, India the Nederland, New Zealand, the Philippines, the Soviet Union and the United States of America. The Tokyo trial lasted two and a half years, from May 1946 to November 1948. Other war criminals were tried in the respective victim countries.


Yugoslavia Trial: The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia or ICTY, is a body of the United Nations established to prosecute serious crimes committed during the wars in the former Yugoslavia, and to try their perpetrators. The tribunal is an ad hoc court which is located in The Hague, the Netherlands. ICTY is a United Nations court of law dealing with war crimes that took place during the conflicts in the Balkans in the 1990’s. Since its establishment in 1993 it has irreversibly changed the landscape of international humanitarian law and provided victims an opportunity to voice the horrors they witnessed and experienced. In its precedent-setting decisions on genocide, war crimes and crimes against humanity, the Tribunal has shown that an individual’s senior position can no longer protect them from prosecution. The Tribunal has contributed to an indisputable historical record; combating denial   and helping communities come to terms with their recent history. Crimes across the region can no longer be denied. For example, it has been proven beyond reasonable doubt that the mass murder at Srebrenica was genocide. The Tribunal has investigated and brought charges against persons from every ethnic background. Convictions have been secured against Croats, as well as both Bosnian Muslims and Kosovo Albanians for crimes committed against Serbs and others.

 


Rwanda Trial: In November 1994 the Security Council of the United Nations adopted Resolution 955 creating the International Crime Tribunal for Rwanda. The tribunal was authorized to prosecute individuals responsible for genocide and other serious violations of humanitarian law during the 1994 civil war in Rwanda. Another express purpose of the tribunal was to encourage the process of national reconciliation in Rwanda and the maintenance of peace in the region. The tribunal is based in Arusha, Tanzania and consists of nine trial judges from different nations, elected by UN General Assembly. The civil war in Rwanda began in 1994, after the death of Rwandan president Juvenal Habyarimana sparked fighting between the nation’s two chief ethnic groups, the Hutu and Tutsi. An estimated 500,000 (five hundred thousand) to 1 (one) million people, mostly Tutsi, were killed during the war. The Hutu dominated Rwanda army was accused of genocide against the Tutsi.


Sierra Leone Trial: In 2002 the UN and the Sierra Leone government jointly established a war crimes tribunal, the special Court for Sierra Leone, to try individuals who had committed atrocities during Sierra Leone’s civil war, which lasted from 1991 to 2000. unlike the tribunals for the former Yugoslavia and Rwanda, which are administrated by the UN and composed of UN appointed judges and prosecutors, the special court is jointly administered by the UN and the Sierra Leone government and contains a mix of Sierra Leonean and international judges, the court has jurisdiction over serious violations of international humanitarian law and certain Sierra Leonean criminal laws.


Extraordinary Chambers of Cambodia: The Communist Party of Kampuchea (CPK), otherwise known as the Khmer Rouge, took control of Cambodia on April 17, 1975. The CPK created the state of Democratic Kampuchea in 1976 and ruled the country until January 1979. The party’s existence was kept secret until 1977, and no one outside the CPK knew who its leaders were (the leaders called themselves “Angkar Padevat”). While the Khmer Rouge was in power, they set up policies that disregarded human life and produced repression and massacres on a massive scale. They turned the country into a huge detention centre, which later became a graveyard for nearly two million people, including their own members and even some senior leaders. At least 1.7 million people are believed to have died from starvation, torture, execution and forced labour during this period of 3 years, 8 months and 20 days. The end of Khmer Rouge period was followed by a civil war. That war finally ended in 1998, when the Khmer Rouge political and military structures were dismantled. By the end of 1977, clashes broke out between Cambodia and Vietnam.

 

Tens of thousands of people were sent to fight and thousands were killed. In December 1978, Vietnamese troops fought their way into Cambodia.

 

They captured Phnom Penh on January 7, 1979. The Khmer Rouge leaders then fled to the west and re-established their forces in Thai territory, aided by China and Thailand. The Cambodia Tribunal, officially known as the Extraordinary Chambers in the Courts of Cambodia (ECCC) is a court established to try the most senior and most responsible members of the Khmer Rouge. It receives international assistance through the United Nations Assistance to the Khmer Rouge Trials (UNAKRT). The court is more commonly referred to by the more informal name the Khmer Rouge Tribunal or the Cambodia Tribunal. Also, the United Nations has ratified the general principles of the trials. Practice followed by international war crimes tribunals in the former Yugoslavia, in Rwanda, and in Sierra Leone extends the principles that were the basis of the other war crimes trials for the maltreatment of civilians in conflicts involving only one nation. Hybrid tribunals have recently been used in other countries including Sierra Leone, East Timor, Kosovo and Bosnia, but each has its own characteristics further established the principle that even the victors in a violent conflict are subject to criminal prosecution.


International Criminal Tribunal, Bangladesh: The trial of the perpetrators of genocide and crimes against humanity committed in Bangladesh upon the innocent men, women and children in 1971 causing death and destruction, rape and rampage, arson and extermination, killing about three million civilians and violating 200,000 women during army occupation of 9 months (25th March – till 16th December 1971) is the first domestic trial set up on 25 March 2010 in Bangladesh under the International Crimes (Tribunal) Act 1973. Trials of 27 cases have been completed, convicting 51 accused There are still 20 cases pending with the Tribunal; a detailed list of which is enclosed herewith. Moreover, 675 complaints involving committing genocide, crimes against humanity, war crimes and other crimes under international law committed during the Bangladesh Liberation War of 1971 as laid down in the ICT Act 1973 are still under investigation of the ICT Investigation Agency.


Propensity of Establishment of a Tribunal In Myanmar?


Despite the precedents and examples cited herein as many exemplary and successful prosecutions against International Crimes held under the Domestic Trial Court across the globe, it seems improbable for the Government of Myanmar to request the UNSC to establish a tribunal within the State, in which many State leaders themselves fall vulnerable to be prosecuted for the alleged crimes. Since the world has its permanent international criminal court to prosecute and punish individuals responsible for the crimes of genocide, war crimes and crimes against humanity committed after July 2002, there is no need for establishment of a domestic tribunal to deal with the present crisis amounting to genocide committed against the Rohingyas.


The International Criminal Court:


The International Criminal Court (ICC) is established under Rome Statute as already stated above. The Court has jurisdiction to prosecute and punish individuals, regardless of the position of the perpetrators, which may include the State perpetrators along with the Commanders of Tatmadaw responsible for crimes such as the crime of genocide, crimes against humanity.


Furthermore, Article 7(2)(g) of the Rome Statute defines persecution as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group”. Though the Rohingyas are deprived of their citizenship status under Union Citizenship Act 1948 of Myanmar, the ICC jurisdiction cannot be ousted since the alleged crimes were committed within the territory of Myanmar.


The ICC has jurisdiction to try cases on the crimes of genocide as provided under Article 6(1) of the Rome Statute. In addition, Myanmar is also a Party to the Genocide Convention 1948 which require similar obligation from Myanmar to prevent and punish individuals responsible for the crime of genocide. However the problem is that the Government of Myanmar itself has been committing the crime leaving no position rather than to flee to other neighbouring countries, such as to Bangladesh, Malaysia, Indonesia and Thailand seeking shelter and protection.


Myanmar is not yet a State Party to the Rome Statute.   On the ground that the perpetrators can nevertheless walk scot-free, leaving Rohingyas with denied access to justice. ICC has jurisdiction to exercise it over States which are non-Parties but with conditions as provided under Articles 13 (b) and (c) of the Rome Statute as follows:


“The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:


(b)     A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or


(c)     The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.”


Moreover, the ICC Prosecutor can initiate his/her own investigation provided that, information from individuals or organisations involved such as the United Nations High Commissioner for Refugees (UNHCR) must supply to initiate the investigation.


In regard under Article 13(b) of the Rome Statute, much like what occurred in Darfur, in Sudan, and Libya, where these two countries are also non-Parties to the Rome Statute, UNSC could also refer the situation in Myanmar to the ICC for bringing prosecution against the crimes. Although such procedures require political involvement from other UNSC Members, the ICC must not be vetoed by any of the “big five” (China, USA, Russia, UK and France) member states for seeking justice for the Rohingyas through UNSC. This might take long for the global community to consider as a legal action to be undertaken to end the plight of the Rohingyas.


It is important for Bangladesh to initiate a discussion with other affected countries such as India, Malaysia, Indonesia and Thailand. China and Russia might be brought into attention of such crisis to be resolved. Simultaneously Bangladesh should open an active discussion with ICC.


The ICC jurisdiction could only be triggered in two circumstances — by the ICC Prosecutor through information provided by individuals or organisations or via the involvement of the UNSC to refer the situation in Myanmar with regards to the Rohingyas. Considering that there is support from the world community as a whole, there is still a ray of hope that justice can be brought to the Rohingyas through the ICC.


Global Call For UN Action: Stop Crime Against Humanity


Myanmar being a majority-Buddhist country, the government does not recognise the Rohingyas, as citizens most of whom are Muslims, as citizens. Daw Aung San Suu Kyi, who is the Elected Head of Myanmar’s government, avoiding any interaction on this subject, neither attended the UN General Assembly recently held in September, 2017, where the other world global leaders showed concern towards Rohingya crisis. In consequence to this, Boris Johnson, Britain’s foreign secretary during the United Nations General Assembly on 21 September 2017 said “I was encouraged by our discussion and by the participation of the senior Burmese representatives but we now need to see action to stop the violence and open up immediate humanitarian access”. Even though there was international condemnation of Myanmar’s campaign of violence against the Rohingya people, there have been some calls for a return of the sort of sanctions that were long a part of the country’s relationship with the West.


It seems unlikely that the United Nations Security Council will impose economic sanctions on Myanmar, in spite of having paramount power. In nine years, the Security Council has condemned the violence with its first unified statement on Myanmar. China blocked efforts made by Egypt to allow Rohingya refugees to be guaranteed the right to return to Myanmar from Bangladesh, as reported by Agence France-Presse.


Human Rights Watch and 87 other non governmental organizations addressed the matter of Rohingya in the UN General Assembly held on 30 September 2017 as follows,

 


“As more evidence emerges, it is clear that the atrocities omitted by Myanmar state security forces amount to crimes against humanity,” the coalition of non-government groups said. “The United Nations and its member states need to take urgent action”.


Immediate steps should be taken by the United Nations General Assembly and Security Council to address the human rights abuses and humanitarian catastrophe engulfing Myanmar’s ethnic Rohingya population. UN Security Council has also been urged to take “strong and swift action” by US President Donald Trump, bringing an end to the Myanmar’s Rohingya violence.


Bangladesh, in the past decades, already took in and arranged shelter for thousands of Rohingya refugees. As a result, despite calls from the international community, Bangladesh was initially reluctant to open its borders to the Rohingya incursion. However on August 25, 2017, Bangladesh  government,  (as the Hon’ble Prime Minister Sheikh Hasina also brought the current Rohingya refugee crisis before the international forum, in the United Nation’s recent General Assembly), assured all necessary arrangements such as shelter, food and medical care for refugees until they are taken back to their own country. Despite shortage of space, “Bangladesh has accommodated further 500,000 Rohingyas solely on humanitarian grounds. Initiatives to free land around 810 hectares has been made near the existing camp of Kutupalong “to build temporary shelters for the Rohingya newcomers”  


Prime Minister of Bangladesh, Sheikh Hasina, further stated in her speech in the UN General Assembly about the temporary sheltering of Rohingyas, “We have the ability to feed 160 million people of Bangladesh and we have enough food security to feed the 700,000 refugees”.Clearly, while Suu Kyi, daughter of the father of the nation of the modern-day Myanmar, has remained silent , Sheikh Hasina, another daughter of the Father of the Nation in Bangladesh, Sheikh Mujibur Rahman, has stood firmly beside the Rohingyas on humanitarian ground and strongly against Rohingya Persecution.


“Bangladesh foreign ministry has reached out to the world powers such as Germany, China and Russia and contacted several multilateral bodies such as the United Nations, European Union, ASEAN and OIC for their help in addressing the humanitarian crisis that has befallen the Rohingya refugees who have crossed the border into Bangladesh during past months. These steps, along with a concrete proposal for establishing a “safe zone” within Myanmar by the UN for persecuted Rohingyas, though are a step in light direction, although a bit late”.


Human Rights Watch and 87 other non-state actors called upon for a global appeal addressing UN delegations and Security Council during the UNs General Assembly. They said, “All concerned UN member states should also be consider bilateral, multilateral and regional actions they can take to place added pressure on the Myanmar government. In particular, we call on all states to immediately suspend military assistance and cooperation with Myanmar.”


The Coalition also added, “In the face of mass destruction, killings, and hundreds of thousands displaced, inaction should not be an option.”


Consequent to the fact that on an urgent note the Rohingya must be protected. However, a permanent resolve of this current matter must be ensured for which urgent aid from the Global UN is obligatory.  The Security Council should also earnestly consider an arms embargo against the military and targeted sanctions against individuals responsible for genocide and the crime against humanity. Therefore, a body formed namely Advisory Commission on Rakhine State  to carry out recommendations, as voiced by Kofi Annan in the Final Report of the Advisory Commission on Rakhine State needs more international sustenance.


Seeking Permanent Solution: Final Report of the Advisory Commission On Rakhine State:


An initiative was taken in September 2016 by Daw Aung San Suu Kyi, the state Counsellor of Myanmar, Kofi Annan foundation and office of the State Counsellor to establish an Advisory Commission on Rakhine State. Most of the members of the commission are from Myanmar and the commission itself is a national entity. This Commission was mandated to examine the complex challenges faced by the Rakhine State. However the commission was rejected by some stakeholders and there was a motion in the parliament to abolish the Commission. Ultimately the motion failed and the Commission sustained. This shows that from the very beginning many were against this commission.


Over 150 meetings and consultations held by the Advisory Commission members who travelled extensively throughout Rakhine State, and held meetings in Yangon and Naypyitaw, Bangladesh, Thailand, Indonesia, and Geneva. While there stands a long road ahead to cross before the peace and prosperity of Rakhine State are assured, as this final report calls upon International leaders, Jurists, journalists and lawyers to unite in order to help strengthen the campaign for implementation of the 84 recommendations as addressed in the Final Report (as enclosed herewith).


Soon after the Commission was established, and started their work that began as it seems in various instructions articulated and recorded in the Final Report of the Advisory Commission on Rakhine State in the following words:


“The importance of our task was both underlined and complicated by the attacks on security personnel that took place in northern Rakhine State in October 2016. While those attacks, and the subsequent security operations, greatly increased tensions, they also reinforced our determination to find durable solutions to the instability and insecurity that continue to blight the prospects of Rakhine State”.


On 9th October 2016, bloody and armed attacks were carried out on the Border Guard Police in Mungdaw Township, as a consequence of the attacks,  around nine members of the security forces lost their lives. This attack was allegedly carried out by the so called Muslim Armed group, known as Arakan Rohingya Salvation Army (ARSA). The Myanmar Government led by Vice President U Myint Swe, established an investigation commission in November 2016, which was to investigate the attacks on Maungdaw, but still there was no proper report to be found in regards to the attacks. The two parallel commissions were formed but as Kofi Annan suggested in his report no investigation was conducted.


The Final Report of the Advisory Commission on Rakhine State was published in August 2017; it addressed structural issues that creates hindrances to the peace and prosperity of Rakhine State with several recommendations focusing on citizenship verification, documentation, constitutional rights and equality before the law, poor state of the internally displaced Rohingyas and their human rights including freedom of movement, which disproportionately affected the Rohingya community.


It also identified various issues related to the Rakhine State including the security condition having deteriorated in Rakhine State as it has been degraded after 9th October 2016. The report stated, “The security forces have been accused of serious human rights violations during the operations. This led the Commission to recommend in its interim report that an impartial and independent investigation should be carried out.”


Meanwhile, it is imperative to mention that the attacks as alleged by Tatmadaw blaming the so called “Rohingya Insurgency Group” described as Arakan Rohingya Salvation Army (ARSA) in October 2016 and recently in August 2017, without any investigation which was strongly recommended by Kofi Annan, Tatmadaw has found the opportunity to finish what it started in 1948, creating yet another accusation as an excuse for committing a heinous and barbaric genocide against Rohingyas.  On the contrary, there was a strong move to block this initiative as a motion moved in the parliament which Suu Kyi succeeded to defeat eventually.


Tatamadaw, yet blocked the initiative to investigate, having launched another clearance operation in August 2017, by arresting, burning, displacing, executing, raping, and torturing Rohingya civilians further alleging them as “terrorists”. As being part of Tatmadaw’s systematic move against Rohingya, crimes against humanity committed against innocents being suppressed under the head of ‘self-defence’ or for punishing the entire civilian population by labelling as a part of ‘counterterrorism’ and ‘counterinsurgency’ measures. In these moves and counter moves, there remains an un-investigated allegation used as a plea for committing genocide against innocent men, women and children at large.


What has happened and is still happening is a matter of concern which has also been highlighted by Kofi Annan in his report that an investigation needs to be carried out regarding the so called ‘Arakan Rohingya Salvation Army’. The new campaign of mayhem which stated as the ethnic cleansing turned into genocide. If investigations were carried out properly as mentioned in the Kofi Annan’s Final Report then the role and character including the composition of the so called Arakan Rohingya Salvation Army could be identified. The question therefore rests whether the Myanmar authority rushed for the mayhem upon the innocent Rohingya without following an impartial investigation,  whether the attacks by the so called Arakan Rohingya Salvation Army was a deliberate attempt to impair Sun Suu kyi’s initiative and to sabotage and frustrate the final report by Kofi Annan. As there was no identification made or any investigated commenced to find out about the so called Arakan Rohingya Salvation Army, Tatmadaw’s shadow boxing against the so called ‘Arakan Rohingya Salvation Army’ could be an imaginary ploy in absence of impartial investigation.


The Final Report as chartered by Kofi Annan strongly urges for a Permanent Solution through his recommendations being noteworthy concept was further supported by the Prime Minister of Bangladesh, Sheikh Hasina who also calls upon for a Permanent Solution to Rohingya Crisis.


However, for the Systematic and widespread method in dividing and fragmenting the society and its polity in Myanmar concurrently creating a monolithic vested interest, concentrating the actual and ultimate power controlled, hence exercised by the Military algorithms, as articulated in the Final Report, it is unlikely that abusive system in Myanmar as established under the Military administration can be eradicated without restoring to judicial process where the perpetrators of the crimes need to be brought to trial. Trial under International Criminal Court is indispensable for the prevention of recurrence of probable holocaust against Rohingya or any ethnic minority in the country. Fascist force in the country can only be defeated by having a consensus in identifying the perpetrators responsible for crimes of genocide, hence to be tried by an International Tribunal constituted under The Rome Statute.

 


The trial of the perpetrators of genocide and crimes against humanity committed in Myanmar upon the innocent Rohingya men, women and children for over many decades causing death and destruction, rape and rampage, arson, extermination and killing with impunity is an imparity under International Law for a permanent resolution of this decades-long crisis.


Under this regime, unless they are prosecuted and punished, this pattern of pathology in killing, cleansing and extermination of certain ethnic group is not going to be cured in Myanmar. And such measures can only be taken if UN Security Council persuades itself to identify the crimes and refer the matter to the ICC for ends of global justice.


Divisions on the basis of ethnicity and religion in Myanmar takes a worse form of “Apartheid” which was practiced as part of an institutionalized system adapted for racial segregation and discrimination in South Africa between 1948 and 1991. What is happening in Myanmar as mentioned above is a ‘Live Volcano’ that has been erupting over a long period with fire and fumes undermining the peace & prosperity of Myanmar having the great prospect for economic development as rightly described in the Final Report under the headline ‘TOWARDS A PEACEFUL, FAIR AND PROSPEROUS FUTURE FOR THE PEOPLE OF RAKHINE’.  Myanmar has otherwise a great potential for becoming a dynamic economy which is blocked and subverted due to an anti-democratic fascist culture ingrown by Military dominance ruling over the years from the very outset of country’s journey to independence since colonial era.


What is therefore pre-requisite is to take steps for a permanent solution that squarely depends upon the UN Security Council.


Kofi Annan is thus the most suitable person to address the Rohingya Crisis to the Global platform for necessary action to be undertaken for comprehensive solutions as recommended in the Final Report.  His Final Report is the ultimate guidance for installing a Democratic Set-up that can only be mounted after the Trial to be held against the perpetrators of crimes. Democratic system can thus be restored back by the democratic head, Aung San Suu Kyi by adopting a democratic constitutional framework. Kofi Annan’s recommendations are not only for saving the society but also provides a road map for enormous economic potentially for peace and progress by harnessing ample resources to become one of the richest economies in the world.  


For instance, Domestic trial established in Bangladesh against the war crimes committed in 1971 has not only been successful in prosecuting the war criminals but finds its result in strengthening the national security of the country. There have been some incidents of terrorism to which the country, under the leadership of Prime Minister, Sheikh Hasina was successfully dealt defeating the force of darkness with speedy recovery.

 

Bangladesh has developed competence and potency in combating any national, transnational and international crimes (i.e. genocide, crimes against humanity and war crimes).


Therefore, in order to revamp the society free from discrimination and disparity in Myanmar, trial is paramount for ushering a permanent solution, so that Humanity can be restored back in society.


Response of Myanmar to Recent Influx of Rohingya Refugees to Bangladesh:


According to the Reuters report dated 23 October 2017 it was found that a draft plan was made by Myanmar in order to bring back the Rohingyas who fled to Bangladesh, but it is possible that they will not be able to reclaim their land and their crops which are going to be harvested and sold by the government of Myanmar.


Aung San Suu Kyi has not been able to prevent genocide. Her government however pledged that whoever can prove their citizenship can return to Myanmar. This nevertheless needs a pre-requirement for having the existing Citizenship Law which needs to be liberalised. No such moves in insight as yet. The six officials who are involved in the resettlement and reconstruction have been interviewed by the Reuters, even though the plan is not finalised yet, the interview reflected that the government is thinking of implementing San Suu Kyi’s pledge. Kyaw Lwin, agriculture minister in Rakhine state, was asked by Reuters whether refugees who returned to Myanmar could reclaim land and crops, in response he said “It depends on them. There is no land ownership for those who don’t have citizenship”


The Reuters have reviewed the state government documents and found that the officials have made plans to harvest, and sell thousands of acres of crops which have been left behind by the fleeing Rohingyas. Myanmar has also planned to establish a ‘model village’ and settle the Rohingyas who will return to the Rakhine State as because all their homes and hearth have been burnt to ashes. Around 71,500 acres of planted rice paddy are abandoned and need of harvesting by January 2018.  According to plans drawn up by state officials but since their owners have fled to Bangladesh, Myanmar government has ordered to harvest it. Rakhine state secretary Tin Maung Swe told Reuters that the harvested rice will be transported to government stores, where it would either be donated to those displaced by the conflict or sold.


Model Village:


Reuter’s review of government plans also stated that the refugees who decide to go back to Myanmar will be received by one of the two centres before they are taken to the model villages. In the report it was stated “International donors, who have fed and cared for more than 120,000 mostly Rohingya “Internally Displaced Persons” (IDPs) in supposedly temporary camps in Rakhine since violence in 2012, have told Myanmar that they will not support more camps, according to aid workers and diplomats.”


UN spokesperson Stanislan Saling in an emailed response stated “The establishment of new temporary camps or camp-like settlements carries many risks, including that the returnees and IDPs could end up being confined to these camps for a long time,”


Since 25th August almost 288 villages have been burnt down and destroyed, the refugees said that the army and Buddhist mobs were responsible for the arson. Soe Aung, permanent secretary at the Ministry of Social Welfare, Relief and Resettlement stated, “The hamlets where Rohingya farmers lived were “not systematic”, and so should be rebuilt in smaller settlements of 1,000 households set out in straight rows to enable development”.


Identity Check:


At the two centres, the refugees who will return back to Myanmar will fill out a 16-point form that will be cross-checked with local authorities’ records. Immigration officials have for years visited Rohingya households at least annually for checks, photographing family members. According to Myint Kyaing, the permanent secretary at the Ministry of Labour, Immigration and Population the Rohingyas who do not have their documents would be compared to their photos in the immigration authority’s files. Officials will also accept “national verification” cards as evidence, these cards have been rejected by the Rohingya community leaders as they said that the government treats the life-long residents as new immigrants through this divide


“We are not going to go back like this,” said Mushtaq Ahmed, 57, a farmer from Myin Hlut village now living in the Tenkhali refugee camp in Bangladesh.


“If I can go back to my house, and get my land back, only then I will go. We invested all our money into those paddy fields. They are killing so many of us with swords and bullets, and killing the rest of us like this.”


This report clearly indicates that even though Myanmar government is planning to take the refugees back, under the international pressure, displaced Rohingyas may not be able to get their crops and lands back from the government, nor any fair deal or treatment whatsoever. Rohingya Refugees having lost everything they had in their home, how could they show any record to establish their citizenship/ residence permits particularly when they only have their body remained without any I.D. Card?


Lesson from the history:


In this background of false promise for white wash, it needs no elaboration on these trails of tragedy except for the purpose of reminding ourselves of the lessons of history.


History teaches us that actions or omissions to act have definite consequences. The cost of sparing the evil has always been very heavy and disastrous. To prevent genocide, the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide in 1948.The Convention deals with issues related to the “crime of crimes.” The Convention codifies the prohibition against genocides although it has been outlawed for much longer in customary international law yet it keeps on occurring around the globe in one form or another throughout history.

 

The definition of genocide is, however, intensely contested terrain, which has been discussed in details in this paper.  


Despite the adoption of the Convention sixty years ago, nearly fifty genocides have occurred in places including Bangladesh, Burundi, Paraguay, Cambodia, Iraq, Rwanda, Ukraine, and continue to occur today in the Darfur region of Sudan. In this regard, a major failure of the Convention has been the absence of an institution to oversee the work of preventing genocide from occurring and intervening where genocide was taking place within global view.


In addition to crimes of genocide, a sense of moral and ethical duty accompanies the trail of past crimes of genocide, crimes against humanity and war crimes. These cases encompass a utopian vision for seeking justice through restitution. For example, through his tenacious pursuit of justice, Simon Wiesenthal demanded that the European nations bring Nazi criminals to trial after World War II. In a world that would prefer to forget, Wiesenthal hounded both criminals and States to remember and reaffirm the meaning of justice.

 


In seeking justice by holding trial, there is obvious need to deal with evidence. It therefore needs a critical evaluation of historical records and victims’ recollections as well as to deal with collective memories. Such an evaluation will avoid inaccurate submissions or oversimplified measure treating it as a solution and there continues the worst form on miseries in the history. Additionally, it helps contextualise both when the events took place and the span of time that has elapsed since the events occurred. Such litigation aims to present the untold suffering and injustice of “those who have endured and suffered great injustice, [who] often have a powerful sense that what they experienced must not be forgotten, but must be cultivated both as a monument to those who did not survive and as a warning to future generations”.

 

There is no scope to be ambivalent, hesitant or even half-hearted in one’s resolve to try and punish those perpetrators with a proper investigation and by conducting a fair trial. On this issue there is no scope for being on the middle of the road, “ones who are in the middle of the road are in danger of being knocked down”. Besides its philosophical significance, it is important to remember that failure to bring criminals to justice has statistically contributed towards generating future crimes, some of which have already been mentioned.


One must not forget the past as it has a curious habit of recurrence unless dealt with in an appropriate manner. The German writer Jurgen Fuchs once said, “If you do not solve this problem in a definite way it shall haunt us”.


Before this paper concludes, it is important to take note that conduction of a process of dehumanising a society or a certain group or community in a country, ultimately amounts to fascism as the history speaks of bitter truth. Persecutions pf the weak or minority are only persuaded under atmosphere called as ‘Culture of Impunity’. Myanmar Mayhem is such a testimony of annihilation of Rohingyas that began in 1948 continuing till now.


Micheal J. Zimmerman elaborated as such in his article namely “Moral Responsibility and Ignorance” quoted as “Let me end by noting that even if in many cases people are not culpable for (e.g.) their racism views and their racist behaviour- this of course does not mean that there is nothing to be criticised, morally, in such cases. Racisms a moral vice, regardless of whether one is morally responsible for it; having racist views is morally reprehensible, and acting on them is morally wrong. Aspirations of responsibility constitute only one of several ways to engage in moral evaluation”91.

 


The impunity culture as has been grown in the persecution mode, notion and method known as ‘Ethnic Cleansing” as commonly phrased in ordinary parlance, but in defining the act of genocide, ethnic cleansing is one of the major ingredients for committing genocide. The armed and police forces who participated in the act of crimes seem to carry out such act under a perception of state agent while committing the crimes under the command of superior authority cannot deny their responsibility on the excuses of abiding the order of superior authority either.  There remains no option other than taking full cognizance of the offences committed, for which trial is a pre-condition for restoring peace and tranquillity into the Community. This is an experience which should be learnt from the history itself.

 


RECOMMENDATION:


Addressing all the distinguished participants  of 14th SAARCLAW conference, after  having a detailed presentation and deliberation, let there be a call upon all other fraternal bodies, regional and international and all the right thinking people on this globe and leaders in the governments and those human rights activists, social and political leaders, jurists and diplomats in order to mobilise a global consensus for high level investigation to be conducted under the UN authority, in order to identify the scheme of perpetrators of these chronic and continuing crimes against humanity, and genocide committed against Rohingyas in a planned & systemic manner widely spread at large, resulting as one of the fallouts, by now having more than half a million Rohingya refugees having taken shelter in Bangladesh while many thousands have been killed, raped, burnt, mutilated, and many are on the trail of hazardous journey, many having been drowned due to the ill equipped boats having been sunk in the Bay of Bengal and in Naf river.

 

 

The entire community being uprooted from their lands and houses, orchard and crops on the field, and their hamlets having been burnt to ashes was thus forced to flee from their homes where they lived for many generations seeking refuge in neighbouring countries for survival.
In order to identify the key planner and perpetrators of the crime as it appears to have been scheming a wide and systematic mayhem over many decades in a systematic manner deserved to be brought to book through a systematic investigation by an agency for collection of available information and evidence as they are all available from media and eye-witnesses along with those gathered from surviving victims deserve to be so investigated by highest international body. It has thus become obvious imperative and cannot be ignored. Therefore, this present assembly of judges & jurists and readers are called upon to circulate this paper to all the members of the Security Council and PRs of all member states and their executive head and the attorney generals of respective countries, further urging the UN Security Council for their own assessment for taking cognisance of the crimes committed against Rohingya under the Rome Statute. This paper is thus recommended to be circulated to all the member states of United Nations, Jurists and political leaders and members of the UN for mobilising a powerful and effective plan for action to be implemented under the auspicious of the United Nation.

 

The writer is a Founding Chartered Member & Patron of SAARCLAW, Senior Advocate, Supreme Court of Bangladesh.


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