By John Packer and Hokbi Tiunn
Often described as “one of the most persecuted minorities in the world”, the 2-3 million or so Rohingya are the largest stateless population in the world with some 85% having been forced to flee their homeland in North Eastern Myanmar. As conflict rages in Rakhine State (aka “Arakan”) between the Myanmar Armed Forces (the Tatmadaw) and the Buddhist Rakhine separatist Arakan Army (AA), the predominantly Muslim Rohingya are caught in between. A soon-to-be-decided case at the International Court of Justice (ICJ) in The Hague may finally bring a measure of justice to the Rohingya despite the very late hour. Much hangs on the ICJ’s decision and possible orders.
Before the conflict erupted, in 2017 the Tatmadaw implemented “clearance operations” with mass killings, widespread sexual violence, village burnings, and forced displacement driving more than 700,000 Rohingya into neighbouring Bangladesh. This drew international attention and condemnation. The UN Independent International Fact-Finding Mission on Myanmar found that the violence included acts amounting to crimes against humanity and underlying acts of genocide. Subsequently, on 11 November 2018 The Gambia (with support from the Organization of Islamic Cooperation) brought a case at the ICJ against Myanmar for its responsibility under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. On 20 January 2020, the ICJ issued a half dozen Provisional Measures (i.e. injunctive orders) which have so far failed to arrest Myanmar’s on-going prima facie genocide (or at least its serious risk).
The focus has understandably been on the Tatmadaw given the military’s central role in decades of violent repression, but it also means that abuses committed by other armed actors receive less scrutiny. Of course, the Tatmadaw are not free agents independent of the State; indeed, practically, they are the State in Myanmar. Moreover, the ICJ is not a criminal instance conducting either a prosecution or an investigation. The implications in fact for the military junta in Naypyidaw are debatable, but the effects in law for Myanmar and the rest of the world will be significant and far-reaching.
The persecution and mass displacement of the Rohingya began decades before 2017. However, the eruption of armed conflict in Rakhine State has, since 2017, exacerbated the situation. The AA has gained effective control over large parts of Rakhine State. This has compounded the persecution and risks for Rohingya who face abuses by both the Tatmadaw and the AA, while the conflict has created new ways to exploit forms of control over the Rohingya, notably forced recruitment.
Myanmar has long refused to recognize Rohingya as citizens, formalized in the 1982 Burma Citizenship Law which removed their official recognition as one of the State-forming minorities or ethnic or racial groups – in effect rendering Rohingya legally stateless. Yet, as the fighting in Rakhine State has intensified, the Tatmadaw has invoked the military service obligations of “citizens” in order to forcibly conscript Rohingya as the AA does the same. The persecuted Rohingya have become fodder in the armed conflict between the Tatmadaw and the AA.
The Tatmadaw has relied on old methods of control to force Rohingya into its ranks. Rohingya cannot refuse military orders nor escape control. HRW has documented restrictions on movement, reductions in food access, arrests of family members, along with threats to burn villages to compel Rohingya communities to provide recruits. The Tatmadaw has cooperated with the Arakan Rohingya Salvation Army (ARSA) and Rohingya Solidarity Organization (RSO), which have been accused of forcibly recruiting Rohingya from refugee camps in Bangladesh to fight in Rakhine State. Having fled Myanmar because of military violence, Rohingya find themselves caught between a rock and a hard place as some are now drawn back into the country’s civil war while other Rohingya remaining in Myanmar are forcibly recruited into the opponent’s forces.
Rohingya have simply no effective protection or recourse and there is limited international presence or access which makes abuses against the Rohingya more difficult to document and challenge, much less to deliver timely responses.
As a pillar of the Republic of the Union of Myanmar, the abusive Tatmadaw is supported by other social, legal and political institutions of the State. Ultimately, the State bears the responsibility for the wrongs committed. This is especially significant for the ICJ case which may result in a judgment of Myanmar’s breaches of the Genocide Convention with immediate implications for other States in their relations with Myanmar – specifically not to be complicit and, instead, to act to prevent the ongoing genocide. There will also be likely consequences concerning reparations owed to the Rohingya – however and whenever that may be realized in fact. Of course, it will be seen whether third party States will be moved to act, and whether the largely dysfunctional UN Security Council will act (as it is essentially bound to do).
It will be more complicated to address the violations by the AA (or other non-State actors). The fact is that Myanmar is increasingly out of the control of the State and under the control of non-recognized de facto powers… or under no control at all. As the AA has expanded its control over Rakhine State, much of the Rohingya population remaining there is under AA authority amid longstanding Rakhine-Rohingya tensions. Any arrangement for Rohingya return would have to address security, citizenship, and the effective protection of their rights and freedoms. None of these issues has been resolved, and many Rohingya places of origin are now practically under AA control (and many places have been destroyed). Even if Myanmar authorities (the Tatmadaw) were suddenly willing to offer security guarantees, they could not ensure that those guarantees would be implemented in areas they do not control or may not long control.
The demands that Rohingya have expressed for decades are clear. They want to return to their homes – safely, voluntarily, and with dignity. They seek recognition of their citizenship (conferred upon Burma’s independence in 1948) and their Rohingya identity, together with the equal enjoyment of fundamental rights and freedoms as well as accountability for past and continuing violations. So far, these aspirations to live peacefully in their homeland have been denied and the ongoing civil war is not soon likely to change the conditions. Moreover, in the prevailing circumstances – and should the ICJ find breaches of the Genocide Convention – Bangladesh and other States would be precluded from contributing to Rohingya return. Indeed, the current conflict has deepened a predicament that has been decades in the making and pushed safe return even further away. Perhaps the forthcoming ICJ judgment will shed a ray of light and alter the calculations and obligations upon others who may finally be moved to act to help protect the long-suffering Rohingya. There is unlikely to be another chance. And we may soon discover whether the world really cares.
