In the last two weeks, the world has witnessed a renewed interest in the Rohingya’s struggles for justice and persecution of Myanmar officials for the Rohingya genocide. The Rohingya now see a ray of hope—thanks to the tiny West African country Gambia—for taking Myanmar and its generals before the International Court of Justice (ICJ) for atrocities against the Rohingya, as violating the United Nations Convention on the Prevention and Punishment of the Crime of Genocide. The legal action by Gambia is critically important as it sends a clear message to Myanmar and the rest of the international community that the world must not stand by and do nothing in the face of the terrible atrocities while genocide is unfolding before our own eyes. The legal action also triggers a judicial process that could determine whether Myanmar’s atrocities against Rohingya Muslims violate the Genocide Convention.
The UN Genocide Convention, adopted in 1948 and entered into force in January 1951, defines genocide in legal terms and includes acts committed with the intent to destroy, in whole or in part, a national/ethnic, racial/religious group, including the killing of its members, causing serious bodily or mental harm, deliberately imposing living conditions that seek to bring about its physical destruction in whole or in part. The atrocities and the Myanmar military’s ethnic cleansing, and forced deportation and displacement of over 750,000 Rohingya, who crossed the border to Bangladesh in 2017 to escape crackdown in Rakhine state, by all accounts constitute a “text-book” example of genocide. Myanmar has always denied its involvement in atrocities against the Rohingya; rather the military and the government justified their actions against deadly attacks on police outposts by militant Rohingya groups, who indeed have been fighting for their rights in Myanmar for generations. Even now, the military continues to commit serious violations, including war crimes, against civilians in conflict-affected areas in Rakhine state.
The move by Gambia is perhaps the first in the history that a country, without any connection to the crimes, has brought this case to the world court to hold Myanmar’s government to account, purely based on its membership in the Genocide Convention and backed by strong support from the Organisation of Islamic Cooperation (OIC). The Gambian action also led to new breaking development globally. A group of Rohingya and several Latin American rights bodies filed a criminal case—using the principle of “universal jurisdiction” that allows all states to address crimes against humanity—in an Argentine court against Myanmar’s top military and civilian leaders, including Aung San Suu Kyi, for crimes committed in Rakhine state. The International Criminal Court (ICC) at The Hague approved a full investigation into Myanmar’s crimes and records of abuse, campaign of murder and destruction of the Rohingya minority. The three separate cases that were filed against Myanmar for atrocities against Rohingya people represent the first international legal attempt to bring justice to the persecuted Muslim minority and draw on the dramatic conditions of the Rohingya in Rakhine state and in exiles in refugee camps in Bangladesh and other countries.
As an ethnic/religious minority, the Rohingya have historically suffered discrimination by the Myanmar Buddhist state. The discrimination and deprivations have been stepped up over the last four decades since the adoption of the 1982 citizenship law, which considers them illegal migrants from Bangladesh and other Asian countries, stripping them off of their rights as Myanmar citizens. This has effectively deprived them of their basic rights, including freedom of movement, access to health services and government jobs. The discrimination and concerted violence against the Rohingya in Rakhine state have forced hundreds and thousands of Rohingya to flee to other countries over the last several decades. Today, out of an estimated three million Rohingya, only 300,000 currently live in Rakhine state, mostly in concentration camps under strict security and restrictions on free movement. Over a million, including those who fled in 1990s, live in refugee camps in Bangladesh; the rest are in exile in countries like Saudi Arabia, Malaysia, Indonesia and Thailand. The Rohingya diaspora has also moved to other countries in Europe and North America.
The repatriation of the Rohingya refugees dominated the 2019 summit of the Association of the South East Asian Nations (Asean) held in Bangkok, Thailand. There was high hope that the Asean leaders would push Myanmar on Rohingya repatriation. Instead, the Asean leaders danced around the key issue—citizenship for the Rohingya—and expressed their support for repatriation by forming an ad hoc support team to carry out the recommendation of preliminary needs as adopted in the 2018 Asean meeting in Singapore and pledged to go further with consultation, communication, capacity building and provisions for basic services for repatriation. Such approaches can only be called callous and unconcerned with protecting the rights of the Rohingya. However, some Asean member countries, notably Indonesia and Malaysia, called for the perpetrators of the Rohingya genocide to be brought to justice and that repatriation process must include citizenship of the Rohingya.
Will cases brought against Myanmar deliver justice to the Rohingya? Myanmar has already rejected the ICC investigation. Myanmar’s close allies—China, Russia and India—had in the past either vetoed UN resolution or refrained from voting against Myanmar. The UN Special Envoy Yanghee Lee recently said that Myanmar should face prosecution at the ICC and that conditions on the ground remain too dangerous for those in Rakhine state and the million Rohingya refugees in Bangladesh. What is then the importance of Gambia invoking genocide convention against Myanmar? First, the move by Gambia marks a significant development in the Rohingya’s struggle for justice. Second, it will help advance accountability for the genocide triggering the establishment of the largest refugee camp in Bangladesh. Third, as pointed out by Bob Rae, the Canadian Special Envoy to Myanmar, it will end impunity for those accused of committing the gravest crimes under international law. Gambia has turned the tables for justice. Now, support from other countries would be critical. The ICC can hold individuals responsible, not state; while ICJ can hold Myanmar responsible as a state. Therefore, no more dancing around the Rohingya’s rights and citizenship. As such, there is hope for future and hope for the Rohingya too. This is a significant development, sending a positive signal to the victims of atrocities crimes in Myanmar and elsewhere.
Mohammad Zaman is an international development/resettlement specialist and advisory professor at the National Research Centre for Resettlement (NRCR), Hohai University, Nanjing, China.