INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANALYSIS (ISSN 2582 – 6433)
VOLUME I ISSUE IX (JANUARY 2021)
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EDITORIAL TEAM
EDITORS Ms. Ezhiloviya S.P. Nalsar Passout
Ms. Priya Singh West Bengal National University of Juridical Science
Mr. Ritesh Kumar Nalsar Passout
Mrs. Pooja Kothari Practicing Advocate
Dr. Shweta Dhand Assistant Professor
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TITLE: AN ANALYSIS OF THE STATE RESPONSIBILITY OF MYANMAR FOR THE CRIME OF GENOCIDE. (By Priyanka Vaidyanath)
Introduction – Myanmar has recently been in the glare of publicity for committing genocide on the ethnic group of Rohingya. The tension between the groups is not new and has been persistent since the incipient stage of the country. The Buddhist dominant state is accused of ethnic cleansing the minority Rohingya population. The UN fact finding machine report has also found out after conducting various interviews that the country has a ‘clearance operation’ to wipe out the Rohingya community. Despite the reports and interviews which bare a strong evidence of clearance operation, the head of the state Aung Saan Suu Kyi reportedly denies the fact of ‘ethnic cleansing’.
The atrocity against the ethnic minority, by the state attracts the breach of state responsibility and also holds it liable under International Humanitarian Law. The clashes between the two groups’ resulted in an armed conflict since both the parties are backed by armed forces. The proportionality of the force used by the state is beyond necessity, thereby violating its responsibility set forth under international laws. The question of whether International Humanitarian Law can be applied to genocide and the breach of state responsibility in case of genocide is analysed in the paper.
‘Rohingya’, is the disputed identity of ethnic Muslims in Myanmar, where the head of the state does not acknowledge1 as against the group itself. Rohingyas are the religious ethnic group largely based at North Rakhine State of Myanmar. Rohingya Muslims are one of the ethnic groups amongst the other Muslims residing in Myanmar. Mixed race of Arabs, moguls and Bengalis form the ethnic minority – Rohingya2. The ethnic group is believed to have been migrated from Bengal during the colonial rule. Soon after declaration of independence in Myanmar the citizenship law has held Rohingyas to be stateless and no citizenship is accorded to them.
The consequence of lack of citizenship is that they were denied the fundamental rights that the Myanmar government guarantees to its citizen. The Constitution of Myanmar recognises
1 Daniel P. Sullivan , ‘Aung San Suu Kyi's Ultimate Test (2016) 38(1) Harvard International Review’
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around 135 races who can apply for citizenship albeit Rohingyas are not included in this list of races3. The government of Myanmar in 2017 decided to revise the Citizenship Act 1982, wherein, an advisory committee was set up to review the status of the Rohingyas. This augmented the process of getting the citizenship by introducing the National Verification Cards (NVC). NVC is given to a non-citizen who needs to apply for citizenship. This indicates that the government of Myanmar recognises Rohingyas as a non-citizen4.
The implication of bestowing NVC to Rohingyas is that it identifies them as ‘Bengali’ the term which the Rohingyas are unwilling to associate with. The term Bengali infers that they are illegal immigrants migrated from Bangladesh and settled in Myanmar, which is untrue in reality. Rohingya community has been subject to oppression since Myanmar gained its independence. Arakan Rohingya Salvation Army (ARSA) is an armed group who claim to “defend, salvage and protect”5 for the rights and identification of oppressed Rohingyas as an act of self-defence.
The tension between the Rohingyas and the government escalated in 2016 when the ARSA striked the police and the military personnel. The group has been training people from 20136 and launched its attack against the government in 2016 with small weapons7. The conflict between the two groups resulted in the casualties of police, military and the members of ARSA. The response to the said attack was disproportionate8 by the government which resulted in the first mass exodus of Rohingyas to Bangladesh. The estimated number of Rohingyas who fled from Myanmar, so far, is 7, 12,700 and 1, 28,0009 internally displaced.
The governmental action and the treatment of Rohingyas, seem to have a genocidal10 tendency. Tatmadaw the Myanmar military has been atrocious and inculcate a vehement
3 Detailed findings of the Independent International Fact-Finding Mission on Myanmar, Human Rights Council Forty-second session, 9–27 September 2019, Agenda item 2, Human rights situation that require the Council’s attention 4 ibid 5 “Myanmar: Who Are the Arakan Rohingya Salvation Army?, ”BBC (September 2017)
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modus operandi11. Civilians including women and children were subject to violent acts and sexual violence by the tatmadaw in the states of Rakhine, Kachin and Shan, which qualify to be international crimes. The United Nation fact finding mission gave out a detailed report about the manoeuvre of Tatmadaw in Myanmar which resonates about the ‘clearance operation’. The main aim of the operation is to wipe out the Rohingya community by mass killing, gang rapes and destruction of villages12.
Culminating the facts about the situation in Myanmar, it can be witnessed that the tension between the government and the Rohingyas has resulted in the misery of the latter. This has forced them to flee their country of origin and take refuge in the neighbouring countries. The mass exodus of Rohingyas to other neighbouring states has brought in no light in their lives, as few countries shut their door to the incoming refugees. The situation which started off as an insurgency movement has heightened to be an international issue which has attracted all the attention from the international community.
CRIME OF GENOCIDE ‘Genocide’ understood in a common parlance means the mass killing of a group of people to eliminate their presence in toto. The Genocide Convention focuses only on the duty of the state to prevent the same. The scope of the Convention does not cover the protection of victims from atrocities. There is a need to ensure that the civilians and the innocent, though not involved in an armed conflict (thereby the ‘genocide’) be protected. Many armed conflicts in the past have escalated to the scale of genocide though the parameters to define genocide or armed conflict are different.
International Humanitarian Law applies to armed conflicts either between two states or between a governmental and a non-governmental institution or organisation13. Article 2 of the Geneva Convention interprets armed conflict to be applicable to “any other armed conflict” apart from declared wars. Common Article 3 of the Convention states that persons taking part in the hostility shall be treated humanely regardless of race, colour, sex and religion14. Reading Article 2 and 3 together it can interpreted that the IHL applies even in case of an
11 Myanmar: UN Fact-Finding Mission releases its full account of massive violations by military in Rakhine, Kachin and Shan States , https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=23575&LangID=E 12 Ibid, note 11 13 How is the term ‘Armed Conflict’ defined in International Humanitarian Law?, ICRC opinion paper , March 2008, https://www.icrc.org/en/doc/assets/files/other/opinion-paper-armed-conflict.pdf accessed November 30, 2019 14 The Geneva Convention, 1949,Common Article 3
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insurgency or an internal disturbance despite the organisations fighting with each other or against the government. The reason for an armed conflict or how the tensions between two parties escalated is immaterial for the application of IHL15.
Interpretation of ‘armed conflict’ includes two main features to be present; the first is that there should be ‘a resort to armed forces’16 and a protracted armed violence between a governmental organisation and organised groups or between such groups within a state17. Even if an act is connected to an armed conflict but is not executed amidst the battlefield, it will be still included under the purview of IHL.
Moving on to the meaning and application of the term ‘genocide’, it was only in 1948, a year prior to Geneva Convention, that ‘The Convention of the Prevention and Punishment of the Crime of Genocide’ was codified. The definition of genocide does not specify an ‘act’ that constitutes a genocide but focuses on the ‘intent’ to destroy national, ethnic, racial or religious group18. Genocide, in contrast with an armed conflict is where one of the parties has carried out violent act to eliminate a certain sect. A genocide can occur either in times of war or during peace. An analysis of few deadliest genocides that the world has witnessed in recent times viz, Rwanda, Yugoslavia, it can be seen that the conflict was between two different ethnic groups. Hutus - Tutsi’s in case of Rwanda19 and Serbs - Croats in former Yugoslavia. It was when the ethnic tensions escalated between the groups did they resort to armed forces.
Any law cannot be read in isolation to a given situation or a circumstance. Thereby, even in case of genocide, International Humanitarian Law will be applicable if both the parties to the conflict resort to armed forces thus constituting armed conflict. The application of IHL and the Convention to prevent genocide is not the same. The former looks into the protection of people who are not taking part in the armed conflict and restricting the means and methods of warfare20, whereas the latter looks into the responsibility of the state to prevent genocide. The
15Jonathan C and Scheuber KW, Principles of International Humanitarian Law (Cheltenham: Edward Elgar Pub Ltd, 2013) 16 Prosecutor v Tadić, International Criminal Tribunal for the Former, Yugoslavia (ICTY) Appeals Chamber Decision on Jurisdiction, 2 October 1995. 17 ibid 18 The Convention on the Prevention and Punishment of the Crime of Genocide, 1948. Article 2 19 “Rwanda: How the Genocide Happened, BBC News” (May 17, 2011)
20 What is international humanitarian law? Advisory service on international humanitarian law , ICRC
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onus is greater on the government when it comes to prevention of genocide which is absent in case of an armed conflict.
Thereby IHL applies to genocides if and only if, both the groups involved in the conflict have resorted to armed forces, then the state territory within which genocide has occurred can take legal actions against such groups. The issue gets complicated when the state itself is responsible for the genocide. Unlike the Rwandan genocide where the ‘ethnic cleansing’ was between two ethnic minorities, the ‘ethnic cleansing’ in Myanmar against the Rohingya Muslims is a state sponsored military operation21.
The Myanmar government leaped to an extent where the journalist who reported the event was targeted, none of the international organisations were allowed for settlement of peace between the government and the Rohingyas. 392 villages are destroyed by fire, 730,000 fled to Bangladesh seeking refuge.
The text of the Genocide Convention nowhere mentions that the targeted group should be unarmed, for the conflict to qualify as genocide. Hence, an armed conflict with an intention to wipe out any race or religion can lead to genocide. This implies that International Humanitarian Law is to be read with the Genocide Convention in cases of genocide, where the former protects the civilians and vulnerable sect, the latter looks into the intention to wipe out a group. Reading two different laws into a given situation like genocide has twofold advantage, one is that the government is held liable for the atrocities and likewise the civilians are protected along with the humanitarian aid.
The Responsibility of the State for Internationally Wrongful Acts is a coded document which entails the responsibility on the states to ensure that there are no internationally wrongful acts committed by that state. State responsibility is attributed to a state for an internationally wrongful act22. According to Article 4 read with Article 5 of the Convention any organ which is established or recognised by the internal law of the state, the act of which shall be considered as the act of the state23.The intention of the Convention is that in case where a state is responsible for an internationally wrongful act then the state is responsible for the same and has to do good the loss.
21 “Myanmar events of 2018” Human Rights Watch,
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There are many defences that the state can claim to waive the responsibility under the Convention. First of its kind is self-defence24, where the state undertakes ‘lawful’ measure to defend itself but the act of which must be in conformity with the United Nations Charter. The first armed attack was launched by the ARSAN forces against the government as a result of long oppression against them. The resulting action from the government has been more violent and disproportional. Article 51 of the UN charter25 mandates that in instances of an armed attack against member state then measures are to be taken by the member state to report the same to the Security Council. The Charter does not mention or details about the ‘perpetrator of the armed attack’, either another state or insurgent groups within the state.
The next defence that the state can claim is force majeure26 where the state had not foreseen the occurrence of an event and the only option left was to do an act which results in internationally wrongful act. There is an exception to this i.e., situation where there are other factors involved in the said act. The Myanmar government cannot use this as well since the tension between the Buddhists and the Rohingya Muslims have existed since 1950’s27 and the express exclusion of citizenship by the constitution and thereby lack of fundamental rights has intensified he tensions post 198028.
Necessity29 is one of the defences that the state can claim in case of an internationally wrongful act. Article 25 gives an exception to the application of necessity as defence wherein ‘if the state has contributed to the situation of necessity’. It has been quite clear that the Myanmar government by introducing NVC has made the status of ethnic Rohingya officially as non-citizens and not even recognise them by the term Rohingya but as a Bengali30.
The Convention states that if the state does not oblige with the peremptory norms of international laws then the wrongful act of the state is no excuse31. Prevention of genocide is
24Responsibility of States for Internationally Wrongful Acts, 2001 Article 21 25 UN Charter, https://www.un.org/en/sections/un-charter/un-charter-full-text/ 26Responsibility of States for Internationally Wrongful Acts, 2001 Article 23 27 Burke A, “New Political Space, Old Tensions: History, Identity and Violence in Rakhine State,Myanmar” (2016) 38 Contemporary Southeast Asia 258
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one of the peremptory norms32 to be followed, the nature or the background of the act is immaterial for it to be considered as genocide. Analysing the Articles of the Convention it can be interpreted that the act of genocide by the Myanmar government is inexcusable and has breached its state responsibility.
A case is now filed by Gambia33 against the Myanmar at International Court of Justice accusing Myanmar for conducting genocide against Rohingya community. The case will be one of the first kinds where the ICJ will scrutinise the issue without referring to any of the tribunals. Unlike the case of Rwanda, Bosnian genocide there is no international tribunal set up to address the issue.
CONCLUSION There is no deterioration in the plight of the Rohingya populous by taking up the issue to ICJ. The neighbouring countries (India, Bangladesh) are not quite welcoming and have their own national policies to substantiate their stands. Needless to quote that these actions from the home government and neighbouring states have proved fatal to the Rohingyas.
It is clear that the action of the Myanmar government has resulted in genocide and a huge failure on the state with regard to its state responsibility. The matter of concern with the Genocide Convention is that, though it aims at ‘preventing’ the genocide its application is mostly seen in the case of punishment. The Convention has failed to prevent the genocide and there is no mechanisms yet formed to prevent the same. Though there is redressal mechanisms like sanctions, filing a case at ICJ the human rights violated and the loss of life cannot be undone.
This echoes the need for a more stringent mechanism of prevention of genocide or an immediate intervention by the international organisations when the issue is at an early stage. All the interventions and humanitarian aid rendered by the Regional Cooperation, International Organisations, international communities and other Nation States are at a later stage when the pain, suffering and death are witnessed but not in an early stage to prevent it.
32 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary Objections [1996] ICJ Rep 595, at paras 31–32, at 615– 616 33 Bowcott, O. (2019). Gambia files Rohingya genocide case against Myanmar at UN court. The Guardian. [online] Available at: https://www.theguardian.com/world/2019/nov/11/gambia-Rohingya-genocide-myanmar- un-court.
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REFERENCES. Statutes: 1. The Geneva Convention, 1949. 2. The Convention on the Prevention and Punishment of the Crime of Genocide, 1948. 3. Responsibility of States for Internationally Wrongful Acts, 2001 4. UN Charter, https://www.un.org/en/sections/un-charter/un-charter-full-text/
Reports: 1. Detailed findings of the Independent International Fact-Finding Mission on Myanmar, Human Rights Council Forty-second session, 9–27 September 2019, Agenda item 2, Human rights situation that require the Council’s attention
Case laws 1. Prosecutor v Tadić, International Criminal Tribunal for the Former, Yugoslavia (ICTY) Appeals Chamber Decision on Jurisdiction, 2 October 1995. 2. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary Objections [1996] ICJ Rep 595
Articles : 1. Adam Burke, New Political Space, Old Tensions: History, Identity and Violence in Rakhine State,Myanmar, Contemporary Southeast Asia, Vol. 38, No. 2 (August 2016), pp. 258-283, https://www.jstor.org/stable/24916632 2. Crowe, Jonathan., and Kylie Weston-Scheuber. Principles of International Humanitarian Law. Cheltenham: Edward Elgar Pub. Ltd., 2013 pg 8 3. Daniel P. Sullivan , Aung San Suu Kyi's Ultimate Test, Harvard International Review, Vol. 38, No. 1 (FALL 2016), pp. 28-33 https://www.jstor.org/stable/26445662Accessed: 28-11-2019 05:14 UTC, pg 33 4. How is the term ‘Armed Conflict’ defined in International Humanitarian Law?, ICRC opinion paper , March 2008, https://www.icrc.org/en/doc/assets/files/other/opinion- paper-armed-conflict.pdf
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5. Mary P. Callahan, Myanmar In 2017: Crises of Ethnic Pluralism Set Transitions Back Southeast Asian Affairs, (2018), pp. 243-264, https://www.jstor.org/stable/10.2307/26492780 6. Mohajan Haradhan History of Rakhine State and the Origin of the Rohingya Muslims, , https://mpra.ub.uni-muenchen.de/88186/1/MPRA_paper_88186.pdf 7. Myanmar events of 2018, Human Rights Watch, https://www.hrw.org/world- report/2019/country-chapters/burma 8. Myanmar: UN Fact-Finding Mission releases its full account of massive violations by military in Rakhine, Kachin and Shan States , https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=23575 &LangID=E 9. Myanmar: Who are the Arakan Rohingya Salvation Army?, BBC, September 2017, https://www.bbc.com/news/world-asia-41160679 10. Myanmar’s Rohingya Persecuted, Living under Threat of Genocide, UN Experts Say, UNHRC, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24991&L angID=E 11. Owen Bowcott,Gambia files Rohingya genocide case against Myanmar at UN court , The Guardian, 11 November 2019, https://www.theguardian.com/world/2019/nov/11/gambia-Rohingya-genocide- myanmar-un-court 12. Rohingya crisis in Myanmar, Global Conflict Tracker, https://www.cfr.org/interactive/global-conflict-tracker/conflict/Rohingya-crisis- myanmar 13. Rwanda: How the genocide happened, BBC News, 17 May 2011, https://www.bbc.com/news/world-africa-13431486 14. Wa Lone, Shoon Naing, At least 71 killed in Myanmar as Rohingya insurgents stage major attack, reuters, August 26, 2017. https://in.reuters.com/article/myanmar- Rohingya/at-least-71-killed-in-myanmar-as-Rohingya-insurgents-stage-major-attack- idINKCN1B507T 15. What is international humanitarian law? Advisory service on international humanitarian law , ICRC
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