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Submitted to

Hafsa Durrani

Submitted by
Maaz Khan
Haris Khan
Introduction

Rohingya has been considered as the most persecuted minority ever in the whole world. The
Rohingya has been living in Myanmar for centuries, and they comprise of about 1.1 million
Muslims. There are a total of 135 ethnic groups in Myanmar, and the irony is that Rohingya is
not considered one of them. They speak a distinct dialect. The UN high commissioner for
Human Rights on 11th of September 2017 said that the current situation of Rohingya is a dark
example of ethnic cleansing. The Rohingya have been persecuted by the Myanmar government
for decades, but the conditions have escalated in the past five years more than ever.

Historical Background

Myanmar came into being 1948, and it got its independence from the British Empire. The
political and civil rights of Muslims have been exploited ever since the first independent
government of Myanmar. In 1962 the military of Myanmar declared Marshal Law. After coming
into power, the military decided to classify citizenship based on religion and Islam was taken
out of the list of the citizen religions. Later in 1974, the government snatched the identity of the
Rohingya, and they were declared as foreigners. After the promulgation of Citizenship law
1982, the Rohingya was made deprived of their Burmese nationality.

The 1982 Citizenship Law was promulgated, and it effectively stripped the Rohingya of their
Burmese nationality. The 1982 Act recognizes three types of citizenship, namely, citizenship,
associate citizenship and naturalized citizenship. Citizens (Article 3) are people belonging to one
of the national races: Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine, Shan, Kaman or
Zerbadee; or whose ancestors settled in the country before 1823 (start of the British Rule).
Those who cannot prove that their ancestors settled in Myanmar before 1823 are classified as
an associate citizen. Moreover, persons qualified for citizenship under the 1948 law, but who
no longer qualify, can also be considered associate citizens, if they had applied for citizenship in
1948. Under Section 44 of the Act, naturalized citizenship can be obtained if the applicant: (i)
can provide “conclusive evidence” that either him or his parents entered and resided in
Myanmar prior to the independence in 1948; (ii) has at least one parent who holds one of the
three citizenships; (iii) is eighteen years old, can speak one of the national languages, is of good
character and sound mind.

Violation of International Law

The activities of the Burmese government damage a few center arrangements of universal law
that may add up to global violations of genocide, wrongdoings against humankind and
atrocities. In the first three weeks, more than 400,000 Rohingya individuals have fled their
homes because of across the board, precise assaults against them, including additional legal
killings, executions, mass assaults, aimless terminating on regular citizens and incendiarism. It
has been accounted for that UN help offices keep on being hindered from conveying
nourishment, water, and pharmaceutical to the Rohingya and distribution centers stocking
imperative crisis supplies are being plundered.

International Crimes

In light of the above facts and context, the following international crimes are being committed
by the Burmese forces against the Rohingya Muslims:

a. Crime of Genocide

Myanmar signed (30.12.1949) and ratified (14.03.1956), with reservations, the Convention on
the Prevention and Punishment of the Crime of Genocide, 9 December 1948.

Under international law, it is the responsibility of every state to prevent, punish and refrain
from Genocide. Genocide, as declared by UN General Assembly Resolution 96(1) is, ‘a denial of
the right of existence of entire human groups.' The Resolution “affirms that genocide is a crime
under international law which the civilized world condemns, and for the commission of which
principals and accomplices – whether private individuals, public officials or statesmen, and
whether the crime is committed on religious, racial, political or any other grounds – are
punishable. The seriousness of the crime of Genocide is underlined by the fact that it has
attained the status of an erga omnes obligation upon the states.
The atrocities committed against this ethnic and religious group constitute the crime of
genocide in the three forms stipulated in Articles 2 (2):

(a) killing members of the group,

(b) causing serious bodily or mental harm to members of the group,

(c) the deliberate infliction on the group of conditions of life calculated to bring about its
physical destruction in whole or in part

Furthermore, as elucidated in the case of Akayesu (1998) by the International Criminal Tribunal
for Rwanda (ICTR) the crime of genocide does not imply the actual extermination of the group
in its entirety.

b. Crimes Against Humanity

Crimes against humanity, as per the International Criminal Court’s (ICC) jurisprudence, contains
the following constituent elements:

1. Existence of an attack directed against any civilian population under or in furtherance of


a State or Organizational policy;

2. Widespread or systematic nature of the attack;

3. Acts committed as “part of” the attack (the nexus);

4. Knowledge of the attack.[8]

In light of the atrocities committed against the Rohingya Muslims by the Burmese forces, in
furtherance of the State or Organizational policy, five kinds of crimes against humanity may be
established, namely:

i. Murder

The ICTR Trial Chamber in Akayesu’s case defined murder as the “unlawful, intentional killing of
a human being.”

ii. Deportation or forcible transfer of population


Under Article 7(2)(d) of the Statute of the ICC (Rome Statute): ‘“Deportation or forcible transfer
of population” means forced displacement of the persons concerned by expulsion or other
coercive acts from the area in which they are lawfully present, without grounds permitted
under international law.’

iii. Torture

Under Article 7(2)(e) of the Rome Statute: “Torture” means the intentional infliction of severe
pain or suffering, whether physical or mental, upon a person in the custody or under the
control of the accused; except that torture shall not include pain or suffering arising only from,
inherent in or incidental to, lawful sanctions.

iv. Rape or any other form of sexual violence of comparable gravity

ICTR defined rape as a physical invasion of a sexual nature, committed on a person under
circumstances which are coercive. Sexual violence which includes rape is considered to be an
act of a sexual nature which is committed on a person under circumstances which are coercive.

v. Other inhumane acts of a similar character intentionally causing great suffering, or


serious injury to body or to mental or physical health.

The ICTR noted that crimes against humanity have been defined as including inhumane acts
other than those stipulated in its Statute. Therefore, it held that any act which is inhumane in
nature and character may constitute a crime against humanity, provided the other elements
are met.

c. War Crimes

Under Rule 156 of the Customary International Humanitarian Law (a study compiled by the
ICRC), serious violations of IHL constitute war crimes. Moreover, only those acts constitute war
crimes which are ‘closely related to the hostilities,' i.e., in pursuance of the purposes of
war/armed conflict. In the case at hand, a NIAC may be deemed to exist, and as enumerated
under the Rome Statute, the following provisions are applicable:
1. Violence to life and person, in particular, murder of all kinds, cruel treatment, and
torture;

2. Committing outrages upon personal dignity, in particular, humiliating and degrading


treatment;

3. Intentionally directing attacks against the civilian population as such or against


individual civilians not taking direct part in hostilities;

4. Committing rape, as defined in article 7(2)(f) of the Rome Statute, and any other form of
sexual violence also constituting a serious violation of article 3 common to the four
Geneva Conventions.

Although Myanmar is not a party to the Rome Statute, however, it is party to the Geneva
Conventions of 1949 (ratified 25.08.1992). Within the Rome Statute, the first two offenses
listed above are categorized as serious violations of common Article 3 of the Geneva
Conventions of 1949, while the latter two are categorized as “serious violations of the laws and
customs of war applicable in an armed conflict not of an international character.” Moreover, all
of the acts mentioned above are violations of CIHL, as established between and by States, and
codified under the Hague Conventions of 1899 and 1907, as well the Geneva Conventions of
1949 and their two Additional Protocols of 1977.

Use of Indiscriminate Weapons

Recent reports, citing government sources, alleging that Myanmar has been laying landmines
across a section of their border with Bangladesh. Such an exercise is aimed at preventing the
Rohingya refugees from returning to Myanmar. Reportedly, Bangladesh is set to launch a
formal protest against the laying of landmines along its border.

Landmines, whether anti-personnel or anti-vehicle, are indiscriminate in their very nature and
are thus violative of the core principles of International Humanitarian Law. Their indiscriminate
nature led to the drafting and wide acceptance of the Convention on the Prohibition of the Use,
Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 1997. To
date, the Convention, also known as the Ottawa treaty, has 162 State parties. Although
Myanmar is not a party to the Ottawa Treaty, it is bound to adhere to the fundamental
principles of customary international humanitarian law, in this case, the principle of distinction.
Moreover, the wide acceptance of the treaty is indicative of strong State practice, and the
underlying gravity of the issue as landmines can explode at any time for as long as they are
deployed, regardless of the cessation of hostilities.

Legal Safeguards for Refugees

International refugee law holds a crucial position within the tenets of international law as it is
interpreted and applied so frequently. It primarily consists of the Refugee Convention 1951 and
the 1967 Protocol Relating to the Status of Refugees. The Refugee Convention defines the term
‘refugee,' outlines the rights of the displaced and the legal obligations of the state to protect
them. A refugee under the Convention is a person who is outside the country of his nationality,
owing to a well-founded fear of persecution for reasons of race, religion, nationality,
membership of a particular social group or political opinion and is consequently unable or
unwilling to avail himself of the protection of that country. Furthermore, the cornerstone of the
1951 Convention is the principle of non-refoulement contained in Article 33. This principle
states that a refugee should not be returned to a country where he or she faces serious threats
to his or her life or freedom. It is also considered a non-violable part of the international
customary law. The principle of non-refoulement applies not only to recognized refugees, but it
also applies to those whose status has not been formally declared. In addition to the principle
of non-refoulement, it can be said that the remaining principles contained within the Refugee
Convention and the 1967 Protocol also constitute customary international law because they
contain ‘reference points for determining customary international law’ and ‘reflect an
international consensus on minimum legal standards to be applied to nationality.’

Bangladesh and India are not parties to the Refugee Convention or 1967 Protocol. However,
due to the wide scale of atrocities being committed against the Rohingya, it can be asserted
that Rohingya Muslims have a well-founded fear of persecution. Thus, to return or expel them
would constitute a violation of international law. It is also crucial to note that Bangladesh and
India are both parties to the International Covenant on Civil and Political Rights (ICCPR).
Obligations laid down under the ICCPR also include the obligation not to extradite, deport,
expel or otherwise remove a person from their territory where there are substantial grounds
for believing that there is a real risk of irreparable harm, such as those falling within the ambit
of Article 6 [right to life] and 7 [right to be free from torture or other cruel, inhuman or
degrading treatment or punishment], as per the interpretation of the UN Human Rights
Committee. Furthermore, Article 3 of the Convention Against Torture (CAT) states that “No
State Party shall expel, return (“refouler”), or extradite a person to another State where there
are substantial grounds for believing that he would be in danger of being subjected to torture.”
Bangladesh is a party CAT. Additionally, Article 14 (1) of the Universal Declaration of Human
Rights, states that ‘everyone has the right to seek and enjoy in other countries asylum from
persecution.’ Thus, in light of the above, it is evident that India and Bangladesh would stand in
violation of their obligations under international law if they were to return Rohingya Muslims.

In the context of an obligation upon Bangladesh to refugees, the international refugee


protection framework does not contain sufficient State practice or opinion juris to demonstrate
a duty upon States to grant asylum to those seeking it under the customary international law.
Regardless of this, the comity of nations can accept refugees by employing a burden-sharing
mechanism. Thus, it is not necessary that the receiving State has to accommodate Rohingya
Muslim refugees for an indefinite period. However, it is clear that to return them to Myanmar
in the current situation or actively seek to prevent their entry would constitute a violation of
the principle of non-refoulement.

Arbitrary Deprivation of Nationality

Under the Burma Citizenship Act, 1982, the native Rohingya Muslims were deprived of their
nationality, effectively making them stateless. The Convention relating to the Status of Stateless
Persons, 1954 and the Convention on the Reduction of Statelessness, 1961 were drafted with
the aim of ensuring certain protections for stateless persons, while reducing and eliminating
statelessness. The 1954 Convention under Article 1(1) defines a stateless person as one “who is
not considered as a national by any State under the operation of its law.” This provision has
acquired customary status over time. However, it important to note that Myanmar is not a
party to either of these conventions.

Be that as it may, the right to nationality was first recognized under Article 15 of the Universal
Declaration of Human Rights, 1948. The provision also creates a prohibition on arbitrary
deprivation of nationality. Since then, multiple international instruments have codified this
right in various respects, such as the International Convention on Civil and Political Rights, 1966
and Convention on the Elimination of All Forms of Discrimination against Women, 1979.
Similarly, the Convention on the Rights of the Child, 1989 to which Myanmar is a party, provides
that a child shall have the right to acquire a nationality. In recognition of these developments,
multiple UN Human Rights Council resolutions consider the right to nationality as a
fundamental human right

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