August 2020 marked the third anniversary of the largest refugee exodus from Myanmar to Bangladesh. Since August 2017, over 730,000 refugees streamed across the Bangladesh-Myanmar border due to a military crackdown in Rakhine State, a western province of Myanmar on the coast of the Bay of Bengal. Earlier crackdowns witnessed mass refugee movements in 1978, 1991, 1992 and 2016. Bangladesh is now hosting 1.1 million refugees from Myanmar. The Government of Myanmar signed a bilateral framework agreement with the Government of Bangladesh for the return of refugees; however the international community has stressed the importance of a safe, dignified and sustainable return.
For refugees to return, Myanmar has to reverse its restrictions on the Rohingya community. These include restrictions on freedom of movement, land ownership, access to state education and healthcare, the right to vote, the right to marriage, and birth control measures. Myanmar is also one of the few countries which have not signed the International Convention on the Elimination of All Forms of Racial Discrimination. Myanmar also needs to accept the term “Rohingya” as the identity of the refugee community.
Who are the Rohingya?
The Rohingya community belongs to the historical region of Arakan (now Rakhine State) in Burma (now Myanmar). The colloquial term Rohingya can be traced to 1799 when a surgeon of the British East India Company recorded the term Rooinga. After the independence of Burma in 1948, Rohingya politicians were elected to the parliament of Burma and served in the Burmese government. They included one of Burma’s first two female MPs. The Rohingya were once recognized across Burmese media, official statements, personal IDs, and government-issued documents.
Between 1974 and 1982, the military junta which ruled Burma since 1962 began to systematically strip the Rohingya of citizenship. The Emergency Immigration Act in 1974 was followed by Operation King Dragon in 1978. The military operation in 1978 caused 200,000 refugees to flee to Bangladesh. These refugees were later repatriated under a process supervised by the United Nations High Commissioner for Refugees (UNHCR). Despite the return of refugees, the Burmese junta introduced a citizenship law in 1982 which excluded the Rohingya from the country’s official list of ethnic groups.
The suppression of the Burmese pro-democracy movement in 1990 led to the next exodus of refugees. Between 1991 and 1992, an estimated 250,000 refugees fled to Bangladesh. UNHCR supervised another repatriation process for the refugees to return to Burma.
The junta officially changed the country’s name to Myanmar and Arakan was renamed as Rakhine State. In 2008, Myanmar adopted a new constitution which established dual civilian-military rule. The military continued to retain key posts in the country’s cabinet and 25 percent of seats in parliament. Key ministries, including the interior, border affairs and defense ministries, remain under the control of the military.
Since 2012, inter-ethnic violence between the Rohingya and Rakhine communities ushered a new era of tension. In 2016, the newly elected government of Aung San Suu Kyi formed the Advisory Commission on Rakhine State to suggest solutions to resolve the conflict in the province.
The emergence of a Rohingya insurgency saw attacks on Myanmar’s military in 2016 and 2017. These attacks sparked brutal reprisals from Myanmar’s security forces, with allegations of mass killings, torture, rape, abductions, land confiscation, and harassment of innocent civilians. Estimates for the death toll during this period range between 6,700 and 24,000. The largest refugee exodus to Bangladesh occurred in 2016 and 2017 which the United Nations labelled as ethnic cleansing.
The UN Human Rights Council formed an Independent International Fact-Finding Mission on Myanmar (IIFFMM) in 2017 for the human rights situation in Rakhine State. IIFFMM was replaced by the Independent Investigative Mechanism for Myanmar (IIMM) in 2018 to probe alleged atrocities.
Refugees in Bangladesh
Customary international law has been vital in making Bangladesh a shelter for refugees from Myanmar. The principle of non-refoulement means Bangladesh cannot force refugees to return to dangerous conditions in a territory from which they fled. Bangladesh was criticized for shutting its border during the Rohingya exodus in 2012. It opened the border in 2016 and 2017 during the military crackdown.
Bangladesh is not a state party to the 1951 Refugee Convention and hence lacks an asylum policy. Despite statements from the Bangladeshi government using the word “genocide”, the country’s ability to sue Myanmar for the refugee crisis is limited by its own reservation on Article 9 of the Genocide Convention. The reservation states that “for the submission of any dispute in terms of this article to the jurisdiction of the International Court of Justice, the consent of all parties to the dispute will be required in each case.” This means Bangladesh cannot sue Myanmar without the latter’s consent.
Bangladesh’s government has asked the international community to impose a “safe zone” and humanitarian corridor in Rakhine State. It has suggested sending peacekeepers with the authorization of the United Nations Security Council. Peacekeeping may become necessary in any future resolution of the conflict. But, given the temporary nature of safe zones and humanitarian corridors, a more durable solution needs to focus on Rohingya human rights.
The Gambia v. Myanmar
On 11 November 2019, the Gambia filed a lawsuit in the International Court of Justice accusing Myanmar of violating the Genocide Convention. The Gambian lawsuit is based on the principles of erga omnes partes and jus cogens. The Gambia seeks to exercise its erga omnes partes obligation against Myanmar as both countries are state parties to the Genocide Convention. Genocide prevention should be treated as a jus cogens norm. There can be no derogation from international law concerning genocide and crimes against humanity.
On 23 January 2020, the Court unanimously adopted a Provisional Measures Order requiring Myanmar to prevent genocide, preserve evidence and report its implementation of provisional measures to the Court. The case is expected continue for several years unless an out of court settlement is achieved.
On 25 February 2020, the Maldives said it is considering filing a declaration of intervention in support of the Gambian lawsuit. Under Article 62 of the Statute of the International Court of Justice, a country with an “interest of a legal nature” may ask the Court for permission to intervene. Under Article 63 of the Statute, the Registrar of the Court will notify all state parties of a convention when the construction of that convention is under question. Notified states have the right to intervene in the proceedings.
Canada and the Netherlands have expressed support for the Gambian lawsuit. Gambia has also chaired an ad hoc ministerial committee formed during the OIC Foreign Ministers summit in 2018 to address the question of accountability and justice for the displaced Rohingya population.
The Prosecutor of the International Criminal Court requested the Court on 4 July 2019 to open an investigation into the alleged crimes against the Rohingya. The Court received testimony from several hundred thousand victims of the alleged persecution.
On 14 November 2019, the Pre-Trial Chamber I of the Court ruled that the ICC has jurisdiction over the deportation of refugees from Myanmar to Bangladesh. This is because Bangladesh is a state party of the Rome Statute of the ICC whereas Myanmar is not. In 2018, the ICC cited the kompetenz-kompetenz principle, which allows an international tribunal to determine its own jurisdiction, to rule that it may exercise jurisdiction over the Bangladesh/Myanmar case.
A nongovernmental organization filed a lawsuit based on universal jurisdiction in Argentina. The lawsuit accuses the leadership of Myanmar of committing genocide against the Rohingya. After initially being dismissed on grounds of duplicity, the case was accepted on appeal by the Federal Appeals Court in Buenos Aires in June 2020. The Argentine appellate court requested the International Criminal Court to provide further information regarding the ICC investigation. This information would help the Argentine judiciary decide if an investigation of genocide in Myanmar should be launched in Argentina.
Universal jurisdiction has been evoked in cases such as Attorney General of Israel v. Eichmann, the attempted extradition of Chilean dictator Augusto Pinochet, and the ongoing German prosecution of two former Syrian intelligence officials accused of crimes against humanity. The Argentine lawsuit adds to the increasing number of universal jurisdiction cases around the world.
While the three ongoing legal cases against Myanmar focus on the charge of genocide, it remains to be seen if these courts can deliver on the right of return of refugees to a safe homeland in Myanmar. The refugees are stuck in a limbo in camps in Bangladesh. They deserve a return to normal life as early as possible. An out of court settlement may involve brokering a peace agreement based on human rights. Nevertheless, the three cases are important in the pursuit of transitional justice in Myanmar.
The international community should observe the implementation of provisional measures ordered by the International Court of Justice. Myanmar is obliged to report to the International Court of Justice regarding the implementation of provisional measures. The confidentiality of these reports may be waived in the greater public interest of monitoring compliance with provisional measures.