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Priyanka Vaidyanath) INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANALYSIS (ISSN 2582 – 6433) VOLUME I ISSUE IX (JANUARY 2021) Email – [email protected] Website – www.ijlra.com 56565656565651 www.ijlra.com Volume IIssue IX|February 2021 ISSN: 2582-6433 DISCLAIMER No part of this publication may be reproduced or copied in any form by any means without prior written permission of Managing Editor of IJLRA. The views expressed in this publication are purely personal opinions of the authors and do not reflect the views of the Editorial Team of IJLRA. Though every effort has been made to ensure that the information in Volume I Issue IX is accurate and appropriately cited/referenced, neither the Editorial Board nor IJLRA shall be held liable or responsible in any manner whatsever for any consequences for any action taken by anyone on the basis of information in the Journal. Copyright © International Journal for Legal Research & Analysis 1 www.ijlra.com Volume IIssue IX|February 2021 ISSN: 2582-6433 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 2 www.ijlra.com Volume IIssue IX|February 2021 ISSN: 2582-6433 ABOUT US INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANLAYSIS ISSN 2582-6433 is an Online Journal is Quarterly, Peer Review, Academic Journal, Published online, that seeks to provide an interactive platform for the publication of Short Articles, Long Articles, Book Review, Case Comments, Research Papers, Essay in the field of Law & Multidisciplinary issue. Our aim is to upgrade the level of interaction and discourse about contemporary issues of law. We are eager to become a highly cited academic publication, through quality contributions from students, academics, professionals from the industry, the bar and the bench. INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANALYSIS ISSN 2582-6433 welcomes contributions from all legal branches, as long as the work is original, unpublished and is in consonance with the submission guidelines. 3 www.ijlra.com Vol ume IIssue IX|February 2021 ISSN: 2582-6433 TITLE: AN ANALYSIS OF THE STATE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’<https://www.jstor.org/stable/26445662>Accessed 28 November 2019 2 Mohajan Haradhan ‘History of Rakhine State and the Origin of the Rohingya Muslims’(2018) MPRA <https://mpra.ub.uni-muenchen.de/88186/1/MPRA_paper_88186.pdf> Accessed 28 November 2019 4 www.ijlra.com Vol ume IIssue IX|February 2021 ISSN: 2582-6433 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) <https://www.bbc.com/news/world-asia-41160679> accessed November 29, 2019 6 ibid 7“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> accessed November 29, 2019 8 Callahan MP, “Myanmar In 2017: Crises of Ethnic Pluralism Set Transitions Back ”[2018] Southeast Asian Affairs 243 <, https://www.jstor.org/stable/10.2307/26492780> accessed November 30, 2019 9 “Rohingya Crisis in Myanmar” (Council on Foreign Relation ) <https://www.cfr.org/interactive/global- conflict-tracker/conflict/Rohingya-crisis-myanmar> accessed November 30, 201 10 Myanmar’s Rohingya Persecuted, Living under Threat of Genocide,UN Expert Say 2019 https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24991&LangID=E 5 www.ijlra.com Vol ume IIssue IX|February 2021 ISSN: 2582-6433 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.
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