[L]aws,
policies, and practices . . . are ultimately part of or attributable
to a system that ensures discrimination even in the absence of
discriminatory individuals.
events
would not have occurred. Eliminating it now, however, is urgently
required for a future of sustainable peace in Rakhine State. Equally
important, it is imperative under human rights law.
The
system’s anchor is the 1982 Citizenship Law, which in both design
and implementation effectively denies the right to a nationality to
the Rohingya population. It supersedes all previous citizenship
regimes in Myanmar.3 The 1982 Citizenship Law creates three classes
of citizens—full, associate, and naturalized —none of which has
been conferred on most Rohingyas.
Myanmar
reserves full citizenship for those whose ancestors settled in the
country before the year 1823 or who are members of one of Myanmar’s
more than 130 recognized national ethnic groups, which do not
include the Rohingya. Associate citizens are those who both are
eligible and have applied for citizenship under a previous 1948 law.
This requires an awareness of the law that few Rohingya posses and a
level of proof that even fewer are able to provide. Access to
naturalized citizenship is similarly, available only for those who
resided in Myanmar on or before 1948. With all three classes, the
Central Body has the discretion to deny citizenship even when the
criteria are met.4
The
1982 Citizenship Law’s discriminatory effects are also extremely
consequential. The main effect is that the Rohingya, most of whom
lack citizenship in Myanmar, have been rendered stateless, both
unable to avail themselves of the protection of the state and—as
has been the case for decades—subject to policies and practices
that constitute violations of their human rights and fundamental
freedoms. These include restrictions on movement; forced labor; land
confiscation, forced eviction, and destruction of houses; extortion
and arbitrary taxation; and restrictions on marriage, employment,
health care, and education.5 Although not limited to Rohingyas,
these restrictions are not imposed in the same manner and to the
same degree on Buddhists or other Muslims in Rakhine State, or on
other ethnic minorities across the country.
This
is systemic discrimination: laws, policies, and practices, though
designed and carried out by people, are ultimately part of or
attributable to a system that ensures discrimination even in the
absence of discriminatory individuals.
It
is unlawful. As a member of the United Nations, Myanmar is legally
obliged to promote “universal respect for, and obser- vance of,
human rights and fundamental freedoms for all without distinction as
to race, sex, language, or religion,” as declared in Articles 55
and 56 of the UN Charter.
The
Universal Declaration of Human Rights—though not a binding
document—provides in Article 15 that “everyone has the right to
a nationality.” Article 2 holds that everyone is entitled to all
the rights in the Declaration “without distinction of any kind,
such as race, color, sex, language, religion, political or other
opinion, national or social origin, property, birth or other
status.” So significant is this anti-discrimination language that
it can be found in five more international human rights documents,
including the Convention on the Rights of the Child (CRC)6 and the
Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW).7
Myanmar
has ratified both of these documents, making their provisions
binding on the state. According to Amnesty International, it is a
violation “to be deprived of one’s rights because of a
characteristic that one cannot change—such as one’s race or
ethnic origin—or because of a characteristic that is so central to
one’s being that one should not be forced to change it, such as
religion.”8
In
addition, Article 7 of the CRC provides for the right of a child to
a nationality, “in particular where the child would otherwise be
stateless.” It is clear that Myanmar, as a State Party to this
treaty, is in violation of its international legal obligations
pertaining to the right of Rohingya children to a nationality.
Myanmar
should substantially amend the 1982 Citizenship Law or repeal and
redraft it, such that the Rohingya are indisputably made citizens.
Rohingyas born in Myanmar who would otherwise be stateless should be
granted citizenship, as should those who are not born there but are
able to establish a genuine and effective link to the country.
Myanmar should also eliminate its policies and practices that
discriminate against the Rohingya on the grounds of ethnicity and/or
religion. More than any other single step, dismantling its system of
discrimination would bring Myanmar’s Rohingya problem closer to a
solution.
3
Because
Myanmar’s Rohingyas have been deprived of a nationality, they are
rendered stateless. The human rights effects of this both for
Rohingyas inside Myanmar and those living abroad as refugees are
substantial.
Inside
Myanmar, a kind of circularity exists whereby systemic
discrimination renders the Rohingya stateless, while their status as
a stateless population acts as validation for further discrimination
and persecution by the state and its citizens. Because of this,
access to a nationality is commonly known as “the right to have
rights.”9 This description, however, is only correct in fact but
not as a matter of law; all human rights belonging to citizens also
belong to stateless persons.
Immigration
law may legitimately distinguish between those with and those
without a nationality. But just as states’ authority
to confer nationality is restrained by a prohibition on denial based
on ethnicity or religion, they likewise cannot apply immigration law
at the expense of basic human rights and fundamental freedoms.
Similarly, although human rights law allows for the conditional
suspension of certain rights during emergencies, it does not
permit—as was the case during the state of emergency declared in
northern Rakhine State in June 201210—derogation from the right to
life (among other rights).
There
are two international treaties on statelessness, neither of which
Myanmar has signed or ratified. At first glance, the Convention
Relating to the Status of Stateless Persons would seem to be the
more relevant to the Rohingya, for it pertains to the treatment of
de jure stateless persons. A de jure stateless person is one “who
is not considered as a national by any state under the operation of
its law.”11 Both its Preamble and Article 3 contain
non-discrimination clauses, while other provisions provide
protections in respect to religion, property, employment, education,
public assistance, and social security,12 all implicating the
situation of the Rohingyas in Myanmar.
Yet,
it is far from clear that the Convention would even apply to the
Rohingya in Myanmar, as it applies only to stateless persons deemed
to be legally residing in the country at issue. Applicability would
thus turn on whether, by virtue of the 1982 Citizenship Law, the
Rohingya are deemed by Myanmar not to be legally residing in its
territory, or whether other actions by the authorities since 1982
indicate or confer legal residency.13
Rohingya
were permitted in 1990 to form political parties and vote in
multiparty elections. Myanmar accepted some 250,000 repatriated
Rohingya refugees from Bangladesh in 1992 and in 1994 began issuing
Temporary Resident Cards to some of them (although the country also
ceased issuing birth certificates to Rohingya babies the same year).
Rohingyas were permitted to vote in both the 2008 Constitutional
referendum and the 2010 national elections, for which they were also
granted a form of temporary identification card. As Myanmar does for
all residents, the authorities have maintained lists of Rohingya
families for several decades.
If
the 1982 Citizenship Law renders the Rohingya illegal residents,
then the Convention Relating to the Status of Stateless Persons
reflects and actually contributes to the circularity in Myanmar
described above. It effectively “scores an own goal” by allowing
states—through the very discrimination it was designed to
contest—to opt out of adhering to its provisions. If the
authorities do consider the Rohingya as legally residing in Myanmar,
however, then the Convention would apply, and Myanmar should be
urged to ratify and implement it.14
The
Convention on the Reduction of Statelessness, in contrast, is of
indisputable relevance to Myanmar’s Rohingyas, as it obligates
States Parties to prevent, reduce, and avoid state- lessness through
taking certain positive measures, especially by granting “its
nationality to a person born in its territory who would otherwise be
stateless.”15 This Convention should thus be the focus of
increased advocacy as a solution to the problem.
4
At
least hundreds of thousands of Rohingyas have been physically
displaced over the past 25 years, both internally and outside of
Myanmar. Although hardly an exhaustive list, the five seminal events
noted above, in 1978, 1992, 2001, 2009, and 2012, all featured or
resulted in such displacement. Internally, not only has communal
violence displaced Rohingyas, but state policy, practice, and
participation—including in either instigat- ing or failing to stop
communal violence—have accounted for internal displacement as
well. At least 115,000 Rohingyas are still in camps away from their
homes in the wake of last year’s clashes.16 State authorities have
forcibly or arbitrarily transferred Rohingyas over the years through
militarization of northern Rakhine State, land confiscation,
evictions from homes and homesteads, and the construction of model
villages.17
The
UN Guiding Principles on Internally Displaced Persons, with its
focus on rights and non-discrimination, should form the basis of the
Myanmar government’s treatment of these internally displaced
Rohingyas, but clearly this has not been the case. Although
non-binding, the Principles contemplate all those internally
displaced, including stateless persons.
It
is believed that more Rohingya live outside Myanmar than the
estimated 800,000 who live inside the country,18 creating an
involuntary diaspora through two and a half decades of both overt
forced deportation and removal by state authorities, as well as the
communal violence state policy has facilitated. These people are not
simply refugees—a difficult enough status to cope with—but
stateless persons outside their territory of habitual and historical
residence.
This
status does not change the root causes of the Rohingya problem, but
it does extend the focus beyond Myanmar alone and onto its immediate
and regional neighbors. Saudi Arabia is thought to host 500,000
Rohingyas.19 In Bangladesh, the country that has and continues to
host the largest number of recognized and unrecognized Rohingya
refugees, 29,000 live in official camps, while another 200,000 live
in makeshift settlements or amidst the local border population.20
Smaller populations reside in Malaysia, Thailand, Indonesia, and
India. October each year marks the start of the annual six-month
sailing season, wherein Rohingyas flee persecution in Myanmar via
smugglers on boats that are often unseaworthy.21
None
of these countries fully respects the Rohingyas’ right to seek and
enjoy asylum or the right to not be sent back to a country in which
they have a well-founded fear of persecution on grounds of (among
others) ethnicity or religion. Known as non-refoulement, this
principle makes irrelevant the fact that the countries mentioned are
not States Parties to the UN Convention on the Status of Refugees.22
The prohibition against involuntary return of asylum-seekers and
refugees is a matter of customary international law, meaning that it
applies regardless of a nation’s treaty status.
Instead,
citing immigration concerns, economic incentives or constraints, or
questionable claims of national security,23 all of these countries
have resorted to detention, forced repatriation, the deprivation of
basic necessities on the high seas, informal depor- tation to
traffickers, and/or direct participation in trafficking. The human
rights and humanitarian records of Bangladesh and Thailand in
particular have long been notably poor in relation to the
Rohingya.24 As such, they are in breach of their international legal
obligations pertaining to asylum-seekers and refugees.
Further,
none of the countries directly affected by the Rohingyas’
displacement is a party to the Convention on the Status of Stateless
Persons. While, as explained above, this Convention possibly acts
against its own interests in Myanmar, it is notably appropriate to
its regional neighbors.25 Unable to avail themselves of the
diplomatic or consular protection of Myanmar, the Rohingyas’
stateless status places them in the same position everywhere,
whereby their “right to have rights” is seen by the authorities
as lacking. It simply compounds the precariousness of their
situation.
Along
with ending systemic discrimination in Myanmar, a solution to the
Rohingya problem would be significantly advanced if Myanmar and its
regional neighbors abided by the human rights provisions pertaining
to stateless persons and refugees.
THE
RESPONSIBILITY TO PROTECT
The
doctrine of the Responsibility to Protect, agreed upon by the UN
General Assembly in the 2005 World Summit Outcome Document, has
three main pillars: 1) the state carries the primary responsibility
for protecting populations from genocide, war crimes, crimes against
humanity and ethnic cleansing, and their incitement; 2) the
international community has a responsibility to encourage and assist
states in fulfilling this responsibility; and 3) the international
community has a
responsibility
to use appropriate diplomatic, humanitarian and other means to
protect populations from these crimes. If a state is manifestly
failing to protect its populations, the international community must
be prepared to take collective action to protect populations, in
accordance with the Charter of the United Nations.26
5
“
If
a state is manifestly failing to protect its populations, the
international community must be prepared to take
collective action to protect populations.”
This
doctrine applies to the situation of the Rohingyas in Myanmar if one
or more of the four expressed crimes is being or has been committed
against them, and if Myanmar is “manifestly failing” to protect
them.
As
there is no armed conflict in Rakhine State, war crimes are clearly
not at issue. Genocide, however, was claimed on doz- ens of other
occasions during the latter half of 2012, mostly by journalists,
commentators, and Rohingya activists, but also by the Organization
of Islamic Cooperation (OIC) in November.27
International
law defines genocide as acts “committed with intent to destroy, in
whole or in part, a national, ethnical, racial or religious
group.”28 Such acts are listed as killing members of the group,
causing serious bodily or mental harm to members of the group,
deliberately inflicting on the group conditions of life calculated
to bring about its physical destruction in whole or in part,
imposing measures intended to prevent births within the group, and
forcibly transferring children of the group to another group.29
The
most credible use of the term in relation to Myanmar came from
Professor William Schabas, who from 2009-2011 was a member of the
International Association of Genocide Scholars. In an Al-Jazeera
documentary entitled “The Hidden Genocide” that first aired on
December 9, 2012, he stated:
[I]n
the case of the Rohingya we’re moving into a zone where the word
can be used. When you see measures preventing births, trying to deny
the identity of a people, hoping to see that they really are
eventually—that they no longer exist—denying their history,
denying the legitimacy of their right to live where they live, these
are all warning signs that mean that it’s not frivolous to
envisage the use of the term genocide.30
Interestingly,
Schabas is also the author of a 2010 report titled Crimes against
Humanity in Western Burma: The Situation of the Rohingyas, in which
he concluded that “[u]nder the circumstances, it does not seem
useful at this stage to pursue an analysis that necessarily depends
on an expansive approach to the definition of genocide.”31 He
explained that international tribunals and other bodies have been
unwilling to interpret the scope of genocide beyond “the
intentional physical destruction of a group,”32 and so clearly
implied that such intentional physical destruction of the Rohingya
as a group was not taking place. While not ruling out the technical
charge of genocide based on a “simplistic analysis of the factual
findings” of the report, Schabas steered clear of assessing the
Rohingya situation through the application of the genocide
definition.33
Have
the circumstances and factual findings since 2010 changed such that
at this stage an argument would be persuasive that an intentional
physical destruction of the Rohingya is underway in Myanmar?
Schabas’s remarks on Al-Jazeera are essentially consistent with
his 2010 report, as most of what he notes is not necessarily aimed
at physically destroying the Rohingya as a group, and even the
communal violence of 2012 and the government’s response— which
he does not address—do not clearly implicate such an expansive
definition of genocide.
Rather,
what the Rohingya have experienced for decades recalls Schabas’s
conclusion in 2010: crimes against humanity. A crime against
humanity is defined in the Rome Statute of the International
Criminal Court as “any of the following acts when committed as
part of a 1) widespread or systematic 2) attack directed against any
3) civilian population,4) with knowledge of the attack”.34 Schabas
added that it is necessary that the perpetrator act pursuant to or
in furtherance of a state or organizational policy.35
Among
the eleven acts listed in the Rome Statute, nine are of varying
relevance to the Rohingya in Myanmar: murder; forcible deportation
or transfer of a population; imprisonment or other severe
deprivation of physical liberty in violation of fundamental rules of
international law; torture; rape, enforced sterilization, or any
other form of sexual violence of comparable gravity; persecution
against any identifiable group or collectivity on political, racial,
national, ethnic, cultural, or religious grounds; enforced
disappearance of persons; the crime of apartheid; and other inhumane
acts of a similar character intentionally causing great suffering or
serious injury.36
Schabas
argued that “the Rohingya are the prima facie victims of the crime
against humanity of persecution,”37 consisting of “the severe
deprivation of fundamental rights on discrimina- tory grounds.”38
The analysis is not dissimilar to discrimination discussed above,
though placed squarely within the five elements that constitute a
crime against humanity. Schabas also accurately asserted that the
government of Myanmar has perpetrated the forcible transfer of the
Rohingya population, via expulsion or other coercive acts.
6
He
stopped short, however, of concluding that this crime against
humanity also constitutes ethnic cleansing and it is here that his
overall argument—accurate enough in 2010—is incomplete in view
of the events of 2012. Ethnic cleansing is “rendering an area
ethnically homogeneous by using force or intimidation to remove
persons of given groups from the area.”39
It
is distinct from genocide in its intent—to remove rather than
destroy the group. Schabas stated: “Since at least 1978, the
SPDC40 have persistently tampered with the ethnic make-up of the
region. However, it cannot be said with any degree of cer- tainty
that the intent behind such actions is to ethnically cleanse North
Arakan State.”41 This would no longer seem to be the case.
Action
by ethnic Rakhine Buddhists and inaction by the authorities—both
aided and abetted by years of persecutory policy and recent
statements by officials—strongly suggest that what is being
prosecuted in Rakhine State is an effort to remove the Rohingya from
the area. President Thein Sein himself set the tone in July when he
stated that the Rohingya could not and would not be accepted as
either citizens or residents of Myanmar, and he asked the UN High
Commissioner for Refugees (UNHCR) to consider placing them in camps
outside of the country and resettling them to others.42 That is, he
wanted them removed from Myanmar.
It
is true that both he and other officials have moderated that
position to some extent since.43 In August, the President pledged to
open more schools for Rohingya.44 In September the Minister of
Immigration stated that the Rohingya have the right to apply for
citizenship,45 and the Vice President pointedly called for increased
economic development for “both sides” in Rakhine State.46 In
November the Foreign Minister pledged to return the displaced in
Rakhine State to their homes as soon as possible.47 That month the
President wrote a letter to the UN Secretary-General promising
unspecified rights for the Rohingyas.48
Despite
these words, however, the actions, developments, and facts on the
ground still support the conclusion that ethnic cleansing49 is
underway in Rakhine State. Proceeding chrono- logically and merging
relevant official actions and statements with those of relevant
non-state actors,50 in August the Rakhine Nationalities Development
Party’s (RNDP) Dr. Aye Maung reportedly urged rice sellers to
refuse Rohingya buyers and said that Rakhine State should “be like
Israel.”51 In a review of the situation prepared for Parliament
that month, President Thein Sein reportedly stated that ethnic
Rakhines were targeting and terrorizing the Rohingya population, and
that Rakhines could not accept Rohingyas as citizens or residents of
Myanmar.52
In
September, groups of monks in Mandalay demonstrated for several days
urging the removal or internment of the Rohingya in Myanmar.53 The
U.S. deputy national security advisor noted this problem and stated,
“In Burma, preferential treatment for Buddhists and prejudice
against ethnic South Asians, particularly ethnic Rohingya Muslims,
fuels tensions between the Buddhist majority and Christian and
Muslim minorities.”54
By
mid-September, an estimated 76,000 persons in Rakhine State were
living in camps. Most were Rohingyas, unable to work, go to school,
buy goods either inside or outside the camps, or even leave them
without fear of being beaten by ethnic Rakhines or detained by the
authorities. Farther south, thousands of Rohingyas had fled the
state capital of Sittwe, where their homes, shops, and mosques were
destroyed like those of their compatriots elsewhere.55
According
to Border Affairs Minister Lt. Gen. Thein Htay, the city reportedly
consisted of “lines that cannot be crossed.”56 However, in what
was described as their largest ever public gathering, ethnic
Rakhines in Sittwe “laid out an ultra-nationalist manifesto
approving, among other things. . . the formation of armed militias,
. . . removal of Rohingya villages, and the reclamation of land that
had been ‘lost’ to [the Rakhines].”57 They also came out
against plans to reunite their community with the Rohingya.58
In
October, a week before the second outbreak of violence on October
21, hundreds of ethnic Rakhines, including monks, demonstrated for
several days in support of relocating the residents of the Aung
Mingalar part of Sittwe, an almost entirely Muslim area.59 Human
Rights Watch observed, “Segregation has become the status quo.”60
In the midst of the violence, several hundred Buddhists reportedly
demonstrated in Sittwe in support of a ten-point document circulated
by the All-Arakanese Monks’ Solidarity Conference, calling for the
targeting of Rohingya sympathizers as national traitors, and the
expulsion of Rohingyas from Myanmar.61 Most Rohingya neighborhoods,
including unburned buildings, were bulldozed in the days fol- lowing
the violence.62 Further, as the government admitted that the
violence against the Rohingya was instigated and organized, rather
than spontaneous,63 the New York Times reported that anti-Islamic
pamphlets appeared in Rakhine State.64
7 Primary responsibility rests with the Myanmar government to protect those
whose right to a nationality the country has long denied, but its
regional neighbors have legal and humanitarian obligations [.]
By
November—when the number of displaced persons reached roughly
115,000 and consisted almost entirely of Rohingyas65—the situation
was most accurately described by The Economist:
[I]ts
main contours are clear: a vicious and bloody campaign of ethnic
cleansing by) (the Rakhines that is intended to drive Rohingyas out.
Rakhine politicians say frankly) (that the only alternative to mass
deporta- tion is a Burmese form of apartheid, in which more
Rohingyas are corralled into squalid, semi-permanent
internal-refugee camps.66
That
month, Buddhist groups reportedly prevented doctors and aid workers
from delivering medical assistance to camps of Rohingyas, and
distributed pamphlets threatening them against continuing their work
in Sittwe.67 Reuters reported that military sources said the second
wave of attacks against the Rohingya —resulting in several more
villages completely destroyed or cleansed—were planned and
orchestrated by Rakhine nation- alists tied to the RNDP (which
denied official involvement).68
Echoing
the title of an August 2012 Human Rights Watch report produced after
the initial violence (The Government Could Have Stopped This), a
member of the National Democratic Party for Development, said “There
were [threats of violence] ahead of the riots—we knew Kyaukphyu
was going to burn and repeatedly warned concerned government
authorities about it but they kept on saying ‘we got it’ and
then the town was burnt down.”69 A government self-survey of
ethnicity in Rakhine State did not contain the option of “Rohingya,”
with those refusing to choose “Bengali” reportedly designated as
such against their will or excluded altogether—in both cases
potentially making them “illegal.”70
December
saw vehement official denials of the Al-Jazeera documentary’s
conclusions, noted above, though the report’s f indings were
revealing. A Burmese academic stated that Rakhine State is “our
ancestral land, we cannot share that land, you know, for any aliens
or immigrants.”71
He also said that “no Muslim, no Bengali
living in that town [of Taungoo] because the town people, town folk,
do not allow any Bengali people to come here.”72
A Sittwe-based
monk not only repeated this statement but reasoned it is why ethnic
Rakhine Buddhists killed ten Muslims there in early June, setting
off the initial communal violence: “They felt insulted and were
furious when ten Muslims dared to pass through the town.”73
Al-Jazeera
displayed a July 2012 statement by the RNDP’s Dr. Aye Maung that
“Bengali people should be relocated to suitable places . . . in
order not to reside or mix with Rakhines.”74 And it stated that in
the Aung Mingalar section of Sittwe, the Rohingyas “are fenced in
and cannot leave.”75
By
the end of 2012, hundreds of Rohingya villages or settlements had
been destroyed, tens of thousands of homes razed, and at least
115,000 Rohingyas displaced in camps or “ghettos” in Myanmar,
across the Bangladeshi border, or further afield on boats.76
According to the International Crisis Group, “There have been
indications that the local authorities …..
might
invoke colonial-era legislation that empowers them to reclaim areas
damaged by fire as state-owned land.”77
Officials
stated that the segregation was temporary for the safety of the
Rohingyas and intended to prevent further violence, which was
doubtless true in July when the process began. That organized
violence had broken out again in October, however, and that the
segregation had only increased, exposed the weakness of the
statement in fact if not intent. Indeed, the most convincing indica-
tion that ethnic cleansing—the forcible removal—of the Rohingya
in Rakhine State is underway is that so many have in fact been
removed from their homes, neighborhoods, cities, and country.78
Certain
lawmakers in Indonesia, Egypt, Saudi Arabia, and Japan referred to
the situation in Rakhine State as ethnic cleansing in August and
September. The Organization of Islamic Cooperation “expressed
disappointment over the failure of the international community to
take action,”79 and Saudi Arabia urged the “international
community to take up its responsibili- ties by providing needed
protection.”80 The formal doctrine of the Responsibility to
Protect, however, gained no appreciable traction among
policy-makers.81
In
November, the UN General Assembly (within which the Responsibility
to Protect originated) adopted a resolution regarding Myanmar that
expressed its “serious concern” about the situation in Rakhine
State.82 It also called for government action in relation to
“arbitrarily detained persons,” the “return of individuals to
their original communities,” the “restitution of property,”
and a “policy of integration . . . and peaceful coex- istence.”83
Although the government
8
“accepted”
the General Assembly’s calls, it undermined its approval by
protesting the use of the word “Rohingya” in the resolution.84
The
General Assembly did not formally invoke the Responsibility to
Protect. Possible reasons include that it did not judge the
situation in Rakhine State to constitute crimes against humanity
and/or ethnic cleansing that it deemed that Myanmar itself was
exercising its primary responsibility to protect its citizens, or
that it assessed that the notoriously difficult political hurdles
attending the doctrine’s successful invocation made it a
non-starter. Only the third possibility is valid: ethnic cleans- ing
is taking place in Myanmar, and as Myanmar is “manifestly failing
to protect its populations, the international community must be
prepared to take collective action to protect populations, in
accordance with the Charter of the United Nations85….”
The
Rohingya problem has been referred to and described in different
ways, and certainly it is more than a matter of national- ity and
discrimination, statelessness and displacement, and the
Responsibility to Protect. Yet the initial two areas have assumed
particular factual and legal significance over the past three
decades, as persecution of the Rohingya within Myanmar and its
effects regionally have continued unabated. The third area—not
unrelated to the others—should assume equal importance and
attention, but thus far it has not. All three issues are progressive
in their application to the Rohingya: persecutory discrimination and
statelessness includes and leads to forcible displacement, which
combined constitute crimes against humanity and ethnic cleansing and
implicate the Responsibility to Protect.
Primary
responsibility rests with the Myanmar government to protect those
whose right to a nationality the country has long denied, but its
regional neighbors have legal and humanitarian obligations of their
own vis-à-vis the Rohingya, as does the inter- national community.
The Rohingya problem begins at home—and could well end there with
enough political will. Failing that, as has been the case since June
2012 if not decades, regional countries and the wider world should
act to address the displacement and statelessness, and to stop the
violence and violations.
ENDNOTES
:-
1
See, e.g., Amnesty International, Myanmar: the RohIngya minority:
Fundamental rights denied (2004).
2
See, e.g., human rights Watch, Perilous Plight: Burma’s RohIngya
take to the seas (2009).
3
These existed in 1947, 1948, and 1971.
4
See Burma Citizenship Law [Myanmar] (Oct. 15, 1982),
http://www.unhcr.org/refworld/docid/ 3ae6b4f71b.html,
(last
visited Nov. 13, 2012).
5
See, e.g., Amnesty International supra note 1; the equal rIghts
trust, BurnIng homes, sInkIng lIves: A situation report on
violence
Against stateless Rohingya In Myanmar And their refoulement from
Bangladesh (2012); human rights Watch, “the
government
could have stopped this”: sectarian violence And ensuing Abuses In
Burma’s Arakan state (2012).
6
Myanmar ratified the treaty on July 15, 1991.
7
Myanmar ratified the treaty on July 22, 1997.
8
Amnesty International, supra note 1.
9
the equal rights trust, supra note 2.
10
See human rights Watch, “supra note 2, at 24–27.
11
United Nations Convention relating to the Status of Stateless
Persons art. 1(1), Sept. 28, 1954, 360 U.N.T.S. 117. See also UN
High
Commissioner for Refugees, Guidelines on Statelessness No. 1: The
definition of “Stateless Person” in Article 1(1) of the
1954
Convention relating to the Status of Stateless Persons, pp. 35-37,
U.N. Doc. HCR/GS/12/01 (Feb. 20, 2012).
12
See United Nations Convention relating to the Status of Stateless
Persons art. 4, 13, 22, 23, 24, Sept. 28, 1954, 360 U.N.T.S. 117.
13
See UN High Commissioner for Refugees, Guidelines on Statelessness
No. 1: The definition of “Stateless Person” in Article 1(1) of
the
1954 Convention relating to the Status of Stateless Persons, pp.
35-37, U.N. Doc. HCR/GS/12/01 (Feb. 20, 2012).
14
See UN High Commissioner for Refugees, Guidelines on Statelessness
No. 3: The Status of Stateless Persons at the National Level,
U.N.
Doc. HCR/GS/12/03 (July 17, 2012).
15
United Nations Convention on the Reduction of Statelessness, art. 1,
Aug. 30, 1954, 989 U.N.T.S. 175.
16
See U.N. Central Emergency Response Fund, CERF Provides US $5.3
million for conflict-affected people in Myanmar, Nov. 26, 2012
available
at http://www.unocha.org/cerf/cerf-worldwide/where-we- work/mmr-2012
Myan.: Displacement in Rakhine State,
U.N.
Office for the Coordination of Humanitarian Affairs , Situation Rep.
No. 9, Oct. 5, 2012. (Myan. Situation Rep. No.5, Oct. 5,
2012).
17
See, e.g., Crimes against Humanity in Western Burma: The Situation
of the Rohingya, Irish Centre for Human Rights, Nat’l. Univ. of
Ir.,
Galway, 2010.
18
See, the equAl rIghts trust, supra note 2, at 28; U.N. High
Commissioner for Refugees, Myan. Fact Sheet (September 2012)
available
at
http://www.equalrightstrust.org/ertdocumentbank/UNRAVELLING%20ANOMALY%
20small%20file.pdf.
19
See Imtiaz Ahmed, Globalization, Low-Intensity Conflict &
Protracted Statelessness/Refugeehood: The Plight of the Rohingyas,
in
the
mAze of feAr: sec. & mIgrAtIon After 9/11, 186 (John Tirman ed.,
2004).
20
See U.N. High Commissioner for Refugees, Country Operations Bangl.
(Oct. 2012), http://www.unhcr.org/ cgi-bin/texis/vtx/
page?page=49e487546&submit=GO.
9
21
See humAn rIghts WAtch Ad Hoc and Inadequate: Thailand’s Treatment
of Refugees and Asylum Seekers, 75-79 (2012). According
to
the Arakan Project, the 2012-2013 season has seen has seen more than
20,000 Rohingyas leave Myanmar on boats.
22
See Convention Relating to Status of Refugees, art. 33(1), Apr. 24,
1954, 189 U.N.T.S. 150.
23
See id., art. 33(2).
24
In February 2013, Human Rights Watch accused the Thai Navy of
opening fire at a boat of Rohingyas, killing two. See e.g. the equal
rights
trust, supra note 2.
25
See U.N. High Commissioner for Refugees, Guidelines on Statelessness
No. 3: The Status of Stateless Persons at the National
Level,
HCR/GS/12/03 (July 2012), http://www.unhcr.org/refworld/docid/
5005520f2.html.
26
See Office of the Special Adviser on the Prevention o Genocide, The
Responsibility to Protect, http://www.un.org/en/
Prevent
genocide/adviser/responsibility.shtml.
27
See Stop Rohingya Genocide: OIC, on IslAm Nov. 17, 2012,
http://www.onislam.net/english/news/asia-pacific/460041-
stop-rohingya-genocide-oic.html.
28
Convention on the Prevention and Punishment of the Crime of
Genocide, art. II, Dec. 9, 1948, 78 U.N.T.S. 1021.
29
See id.
30
The Hidden Genocide, Al JAzeerA, Dec. 9, 2012,
http://www.aljazeera.com/programmes/aljazeerainvestigates/
2012/12/2012125122215836351.html.
31
Irish centre for human rights, crimes Against humanity In Western
Burma: the situation of the RohIngyas 29-30 (2010).
32
Id. at 29.
33
Id.
34
Rome Statute of the International Court, art. 7, U.N. Diplomatic
Conference of Plenipotentiaries on the Establishment of an Inter-
national
Criminal Court, U.N. Doc. A/CONF/183/9 (July 17, 1998).
35
Irish centre for human rights, supra note 31, at 31–32.
36
Rome Statute, supra note 34.
37
Irish center for human rights, supra note 31, at 137.
38
Id. at 138.
39
Case Concerning the Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and
Herzegovina
v. Serbia and Montenegro) (Judgment), para. 190, Feb. 26, 2007.
40
State Peace and Restoration Council, Myanmar’s governing body at
the time.
41
Irish centre for human rights, supra note 17, at 112.
42
See democratic voice of Burma, gov’t Will not recognized RohIngya:
Thein Sein, July 12, 2012.
43
The government established of a 27-member commission to investigate
the initial outbreak of violence; assigned the same task to
the
National Human Rights Commission; initiated a second investigation
into the second outbreak of violence in October; ordered
that
weapons be turned into the authorities; rebuked the RNDP’s
nationalist language; and pledged to bring perpetrators of the
violence
to justice. However, the Foreign Minister denied in August both
human rights violence and a “policy of abuse” against the
Rohingya,
and in September, Rakhine State’s Attorney-General denied
religious persecution of the Rohingya.
44
See Michael Lipin, Burma’s President to open schools for Muslims,
Voice of America Aug. 14, 2012.
45
See, Rohingyas ‘have the right’ to apply for Burmese
citizenship: minister, Mizzima news, Sept. 13, 2012.
46
Burma’s vice president calls for development in Rakhine State,
Mizzima news Sept. 24, 2012.
47
See, Government to resettle refugees in Arakan state: Burmese FM,
Agence-frAnce presse, Nov. 6, 2012.
48
See, Myanmar’s president says he’ll consider new rights for
Rohingya minority ahead of Obama visit, AssocIAted press, Nov.19,
2012.
49
On August 3, 2012, Agence-France Presse quoted Indonesian protesters
outside the Myanmar Embassy in Jakarta expressing anger
at
“Muslim cleansing” in Rakhine State. While the issues of the
Rohingyas’ ethnicity and religion (also a minority in Myanmar,
where
an overwhelming majority of the population is Buddhist) have become
conflated since June 2012, this author believes that
religious
persecution of the Rohingyas is part and parcel of, and therefore
subsumed by, their persecution on ethnic grounds.
50
While the author visited Myanmar twice in late 2012 and spoke with a
number of Rohingyas from Rakhine State, most of the factual
