by Abdurrahman Erol and Selman Aksünger*
While a lot of attention has been devoted to North Korea and referendum in Northern Iraq, comments must be made on one of the most tyrannous mass human rights violations of the last couple years. Recently, news on Myanmar and Rohingyas started to hit the headlines again. Graphic pictures and videos from the decades-long conflict zone Arakan, a.k.a Rakhine state, have started to spread in some news and social media sites. Although the State Peace and Development Council of Myanmar does not recognize the Rohingyas as one of the 135 ethnic minority groups, they are indeed such a minority group, which is estimated to constitute 25% of the population of Arakan. It is believed that around 800.000 Muslim Rohingyas live in Arakan and are mainly concentrated in the northern part of the Arakan state. The Buddhist Rakhine constitutes the majority ethnic group in Arakan.
There are different claims about the origins of the Rohingyas. Former and current governments in Myanmar argue that they are illegal immigrants from adjacent Muslim regions who came after the Anglo-Myanmar War in 1824. However, on the other hand, the Rohingyas and some renowned scholars state that they are descendants of the first Muslim residents of Arakan who came there in or around the 9th century by way of the new emerging trade routes through the Bay of Bengal and the Andaman Sea. This debate forms the basis of today’s problems in Arakan and the mistreatment of Rohingyas, resulting in gross human rights violations by the government and majority groups in Arakan.
Since the Rohingyas are subjected to gross human rights violations, international human rights law is of great importance in the determination of accountability for these violations. However, holding the Myanmar government accountable on the grounds of international human rights treaties does not have an impressive record. It is not even a state-party to ICCPR or ICESR, let alone any other major human rights treaties. While we shall see whether a human rights instrument will be applied internationally to the Myanmar regime for its violation of the most fundamental of human rights, thankfully, there is another body of international law that can pose a significant cost for the perpetrators, according to customary international law (CIL). The practices of Myanmar to the Rohingyas do not comply with some of the fundamental rules of customary international law and international human rights law. To illustrate, unjustified discrimination on any grounds, such as race, ethnicity, religion or gender, is strictly prohibited under customary international human rights law. Moreover, the prohibition on creating statelessness is also accepted as a part of customary international human rights law.
Furthermore, committing crimes against humanity is another well-settled prohibition in international human rights law. In this respect, Article 7 of the Rome Statute of the International Criminal Court can be used to set a framework to determine accountability. This article attempts to illustrate that some of the systematic practices of the Myanmar government towards the Rohingyas bear the elements of crimes against humanity. Consequently, these actions of the government, which will be further explained below, may be classified as crimes against humanity.
The Irish Human Rights Center conducted a comprehensive study on the possible crimes in Myanmar. Its report is based on a fact-finding mission in the region and provides a wide range of evidence, including confidential testimonies and interviews with the victims, expert meetings, and investigation of the human rights specialists in the region. The report indicates that the imposition of forced labor on the civilians, forced displacement and deportation of Rohingyans individually and as the group, gender-based crimes against women and girls, and persecution of Rohingyans constitutes a widespread and systematic attack against the Rohingya population in Arakan State. These findings satisfy the chapeau requirement for crimes against humanity under Article 7 of the Rome Statute and Article 3 of the International Tribunal for Rwanda. Myanmar is not a state party to Rome Statute may constitute a framework for accountability for the crimes Rome Statue and henceforth the ICC cannot have jurisdiction over the crimes which occured there unless the Security Council makes a referral or a possibility of a 12(3) declaration to the ICC under the Rome Statue. Nevertheless the Article 7 of the committed in Myanmar. The actus reus of murder, enslavement, forcible transfer and rape will be analyzed as followed.
Following clashes on August 25, 2017, in the northern Rakhine State, the security forces of Myanmar started carrying out harsh measures against civilians in the region, which caused an estimated 3000 deaths. Activist for the Rohingya claim numerous more civilians have died in army attacks on villages, but they have not appeared in total numbers. The European Rohingya Council called upon the UN, EU, US, UK, and ASEAN as well as the neighboring countries to act for Responsibility to Protect in Rakhine state. The death toll is increasing as a result of the activities of the armed forces of Myanmar, and the clashes already cause humanitarian crises.
Enslavement – Forced Labor
The International Labour Organisation (ILO) has been closely watching the failure of the Myanmar government to comply with the ILO Constitution and established a Commission of Inquiry to inspect the allegations against the state. The Inquiry Commission concluded that the prohibition of forced labor is manifestly violated in Myanmar in domestic law. The practices show that the state and military, in particular, rely on the forced labor in widespread and systematic manner, with total disregard for the human dignity, protection, and fair health of the people of Myanmar. Agriculture and construction are inter alia the main areas for forced labor and enslavement, which requires individual criminal responsibility under to the Rome Statute.
Forcible Transfer, Displacement, and Trafficking
A Report of the Special Rapporteur of Myanmar noted that the denial of citizenship; restrictions on movement, land confiscation policies and other human right violations are the root causes of displacements and human trafficking. Another report of the UN, conducted by Office of the High Commissioner for Human Rights in February 2017, ascertained that the acts of the Myanmar government during a military offense in Eastern Myanmar were the main reason for the displacement of Rohignyans. The complicity of the Myanmar (named as Burma) government on the trafficking was also confirmed by the US government, stating that the Burma government is unable to provide a minimum standard of human rights such as right to life, freedom of slavery, freedom from torture, freedom of thought and right to legal personality (see here and here). NGO reports display in more detail how the displacement and of the unwanted people of Rakhine State carried out. (see here and here). The findings of forcible transfer of Rohingyans in Myanmar reveal sufficient evidence for the crime of displacement if not ethnic cleansing.
Rape and Sexual Violence
The most vulnerable among the victims are women and children in Burma. The women have been subjected to rape and sexual abuse, while the state exacts forced labor from their men. The different women ethnic group of Burma blamed the Burma government for the state-sponsored sexual violence. The recruitment of children by state armed forces has also been documented by the UN and human rights organizations. Despite widespread condemnation from several organizations and other countries, a brutal campaign against the Rohingya minority in Burma continues.
In the aftermath of these aggravating violations, the UK called on the Security Council for an urgent meeting regarding the Myanmar violence. Although there was no formal outcome of the closed-door meeting, which took place on August 30, 2017, the British Ambassador Matthew Rycroft stated in media encounter that there were calls from council members for de-escalation. The Security Council will meet second time to discuss the violence in Myanmar and will be briefed by Secretary General. So far the value of the human dignity and human rights are seriously tested in Myanmar, and the worlds most unwanted people have already lost their hope. It is likely that the recommendations put forward by the UN on citizenship and the Rohingyas’ right of movement are far from establishing a secure place for them to live. The failure to apply the humanitarian treaty in Myanmar obliges the international community to take action and especially to rely on the CIL to protect civilians. Otherwise, the world will experience another humanitarian crisis that may take place in the history books as a shameful act if the necessary measures are not taken by the Security Council.
Abdurrahman Erol has completed bachelor in Turkey and LL.M at Tilburg University. Currently, he is doing a research master at the same university and executing the academic programs of Istanbul Center of International Law. His research focuses on various issues related to Business and Human Rights, Corporate Responsibility and International Criminal Law.
Selman Aksünger is an LLM Candidate at Leiden University and Academic Director of Istanbul Center of International Law. His research focuses on various issues related to International Criminal Law and state responsibility, Terrorism and International Humanitarian Law. He is currently researching on the prosecution of international crimes in European domestic courts.