Genocide is an attempt to exterminate a people, not to alter their behaviour.
- Jack Schwartz
The Rohingya genocide is one of the most high-profile genocides in recent years. As a member of ASEAN and having close diplomatic relationships, Malaysia has opened its borders in 2016 to Rohingya refugees, despite not being a party to the 1951 Refugee Convention and its Protocol. As such, the University of Malaya Law Society (UMLS) would like to provide our collective stance on this matter from an academic legal perspective.
Definition of Genocide
As per Article II of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, actions provided for under this Article will be considered as an act of genocide, if paired with the intention to destroy, partially or completely, a nation, an ethnic, a race or a religious group. This includes killing members within the group, causing severe bodily or mental harm to the members, deliberately inflicting conditions of life calculated to bring about the physical destruction of the group – including depriving them of food, medical care, and shelter, imposing measures with the intention to prevent births within the group and forcibly transferring children from the group to another group.
Background of the Case
The Rohingya people, unlike the majority of people in Myanmar who practice Buddhism, are Muslims. They represent the largest percentage of Myanmar Muslims, and a majority of them live in the Rakhine State, which is on the west coast of Myanmar.[i] They are not one of the 135 legally recognised ethnic groups in Myanmar, and hence they were denied citizenship under the 1982 Citizenship Law, and were declared as illegal immigrants from Bangladesh.[ii]
In October 2016, the insurgency started, when the villages and together, the livelihood of the Rohingya people were burnt to ashes. The Rohingya people were beaten, raped or rounded up, burnt, stabbed, or shot to death.[iii] Within a year, more than 410,000 Rohingya refugees have fled to Bangladesh, with many drowned in the Naf River. These were initiated by members of the military and security forces, and when Rohingya militants attacked the police on 25th August 2017, it led to once again another outbreak of violence. Myanmar’s military claimed that they were fighting insurgents, but those fleeing the country said that it was a campaign aimed to drive them out with brutal force.[iv]
Progress of the Case in the International Court of Justice (ICJ)
The Republic of The Gambia filed a complaint with the ICJ in The Hague on 11th November 2019, with the support of the Organization of Islamic Cooperation (OIC). The case alleged that Myanmar's crimes against the ethnic Rohingya in Rakhine State breached numerous provisions of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).
The ICJ has already affirmed that all convention members have a responsibility to prevent and punish genocide. In its application to the ICJ, The Gambia, which ratified the Genocide Convention in 1978, brought the case under Article 9 of the convention, which permits disputes between parties "relating to the responsibility of a State for genocide" and related acts to be submitted to the ICJ, and also citing events in 2017, when more than 730,000 Rohingya Muslims fled Myanmar into Bangladesh following a military crackdown. A United Nations fact-finding mission concluded that the military operation consisted of "genocidal acts."[v]
The Gambia also asserted that Myanmar has violated other fundamental obligations under the Genocide Convention, including "attempting to commit genocide; conspiring to commit genocide; inciting genocide; being complicit in genocide; failing to prevent and punish genocide; and failing to pass legislation giving effect to Articles I, III, and V of the Genocide Convention".
Two months later, at the request of The Gambia, the ICJ issued an order requiring the government of Myanmar to adopt certain "provisional measures" to safeguard the Rohingya people while the case was being heard. This landmark case puts Myanmar's responsibilities as a state for the atrocities committed against the Rohingya people squarely in the spotlight.
The case brought against Myanmar by The Gambia before the ICJ under the Genocide Convention is the first and only attempt in a court to explicitly demonstrate Myanmar's guilt for genocide. Myanmar has not been called out on its responsibility for any international crimes, despite the fact that several governments and organisations have imposed sanctions against the country.
On January 23rd 2020, the ICJ issued provisional measures ordering Myanmar to prohibit all genocide against the Rohingya, to guarantee that the military and other security services do not commit genocide, and to take efforts to preserve evidence connected to the case. The court ordered Myanmar to report on its compliance and execution of temporary measures within four months, and then every six months thereafter. Provisional measures orders issued by the ICJ are legally binding on the parties to the dispute.[vi]
However, preliminary objections were made in January 2021 by Myanmar, which at the time was governed by the National League for Democracy led by Aung San Suu Kyi. These objections challenged the court's jurisdiction and The Gambia's standing to initiate the lawsuit.
In the preliminary objections, Myanmar had stated in its preliminary objections that The Gambia lacked standing since it submitted its application as a ‘proxy’ for a regional entity, the OIC, although the ICJ was founded to adjudicate conflicts between nations. However, the court determined that The Gambia brought the lawsuit and that the fact that it sought help from other nations or intergovernmental organisations had no bearing on its standing before the court.
Second, Myanmar contended, as required by Article 9 of the Genocide Convention, that there was no disagreement between The Gambia and Myanmar over the meaning, implementation, or compliance of the convention. The court determined that a conflict may be inferred from public and private discussions and did not need to be explicit. The ICJ cited The Gambia and Myanmar's divergent perspectives on the fact-finding mission, which found that "the State of Myanmar violated its commitment under the Genocide Convention not to commit genocide." The Gambia actively advocated for the adoption of the fact-finding mission's recommendations, whilst Myanmar rejected the mission's conclusions as biassed. The court determined that, among other things, these remarks constituted a disagreement on the alleged events and Myanmar's duties under the Genocide Convention.
Thirdly, Myanmar maintained that its reservation to Article 8 of the Genocide Convention, which empowers states parties to the Convention to call on competent UN organs to take action to prevent and repress genocide, bars states from pursuing proceedings before the ICJ, as the ICJ is itself a UN agency. Nonetheless, the court determined that Article 9 expressly grants the ICJ jurisdiction over issues involving the implementation of the Genocide Convention. The court concluded, therefore, that the purposes of the two articles are distinct and that a reservation to Article 8 does not apply to Article 9. The court observed that Myanmar did not make any exceptions to Article 9.
Myanmar stated that because The Gambia was untouched by the alleged Genocide Convention violations, it lacked the legal right to file a claim. The court determined that all governments who are signatories to the treaty have an interest in guaranteeing the prevention and punishment of genocide. As a result, any state, not only those impacted by the infractions, can file a claim against another to enforce conformity with the convention.
The case then proceeded, and from February 21st to 28th 2022, the ICJ held public hearings on Myanmar's preliminary objections. The hearing commencing on February 21st 2022 highlighted the essential significance of seeking justice to the ethnic Rohingya injustices committed by the Myanmar military. After four days of arguments about the ICJ's jurisdiction to continue the proceedings, the genocide case against Myanmar finished at The Hague on February 28th. Next, the ICJ will render a ruling on the preliminary objections, which will determine if the case may continue to the merits.[vii]
International Responses from the Public
Following the horrendous Myanmar Genocide, the Biden administration has declared that Myanmar's military has committed genocide against the Rohingya minority.[viii] At the United States Holocaust Memorial Museum in Washington DC, Secretary State, Mr Anthony Blinken has called the attacks against Rohingya as "widespread and systematic".
Moreover, Amnesty Organisation had criticised heavily on the lack of freedom of expression and association of the public.[ix] For example, the military government announced the amendments of the Penal Code in which intent to criticise and actual criticism thrown towards the government would be penalised.
Section 505(a) was added, which criminalised comments that “cause fear” and spread “false news”, as well as criminalising individuals “committing or agitating, directly or indirectly, a criminal offence against a government employee”.[x] Committing an offence under this provision would lead to imprisonment up to 3 years. New provisions were also introduced in the Criminal Procedure Code which allowed searches, seizures, arrests, surveillance and interception of communications to take place without warrants.
At times, the military authorities would impose nationwide internet and telecommunications shutdowns, as a method to restrict the public to voice out their dissatisfaction via social media platforms, which essentially, violates the right to freedom of expression. This is often seen in areas where there were military operations, such as in Hpakant township in Kachin State in which internet and WiFi services were suspended and even mobile phone networks were cut off.
In 2021, following the major amendments which restricted the citizens’ legal rights, the military authorities closed at least five independent news publications and revoked the licences of eight media outlets. At least 98 journalists were arrested following the coup and one journalist, Ko Soe Naing, died in custody.[xi]
As of now, attacks are still being carried out consistently against civilians. In terms of education, in 2021, approximately 12 million children (increasing every year) and young people had no access to formal education due to armed conflicts, military authorities and Covid-19 restrictions.[xii]
Malaysia’s Response and Our Stance
Notably, Former Prime Minister of Malaysia, Mahathir Mohammad in 2019, have stressed Myanmar to resolve the Rohingya crisis and had also addressed the genocide as “ethnic cleansing”.[xiii] Similarly, Rohingya activist, Zafar Ahmad Abdul Ghani, head of Myanmar Ethnic Rohingya Human Rights Organisation has also urged the Malaysian government to take this matter to the International Court of Justice and International Criminal Court to prosecute Myanmar’s military. [xiv]
As Malaysia has made its stance clear in the persecution against the Rohingya community, the UM Law Society would like to follow suit and therefore, unequivocally stands with the spirit of the law and condemn the brutalities done by the Myanmar military. In regards to the outright violation of human rights which inevitably resulted in Rohingyas fleeing the country en masse, the Malaysian Government could do more by reassessing our treatment towards refugees and reviewing the relevant policies which could utilise Rohingya’s refugees as economic functionaries rather than detaining them as undocumented migrants. It is high time to put an end to these atrocities and amplify the voices of those affected.
UM Law Society 21/22
## June 2022
Email: lawsocietyum@gmail.com
Website: www.umlawsociety.com
[i] BBC News. (2020, January 23). Myanmar Rohingya: What you need to know about the crisis. https://www.bbc.com/news/world-asia-41566561
[ii] BROUK. (2014, December). A Briefing by Burmese Rohingya Organisation UK: Myanmar’s 1982 Citizenship Law and Rohingya. https://burmacampaign.org.uk/media/Myanmar%E2%80%99s-1982-Citizenship-Law-and-Rohingya.pdf
[iii] United Nations Human Rights Ofice of the High Commissioner. (2017, February 3). Report of OHCHR mission to Bangladesh: Interviews with Rohingyas fleeing from Myanmar since 9 October 2016. https://www.ohchr.org/en/press-releases/2017/02/devastating-cruelty-against-rohingya-children-women-and-men-detailed-un?LangID=E&NewsID=21142
[iv] BBC News. (2017, September 19). Myanmar: What sparked latest violence in Rakhine?. https://www.bbc.com/news/world-asia-41082689
[v] United Nations. (2019, November 11). ICJ – The Gambia v. Myanmar. https://iimm.un.org/icj-the-gambia-v-myanmar/
[vi] Global Justice Center. (2020, May 20). Q&A: The Gambia v. Myanmar, Rohingya Genocide at The International Court of Justice, May 2020 Factsheet. https://www.globalr2p.org/publications/myanmarqav2/
[vii] Human Rights Watch. (2022, February 14). Developments in Gambia’s Case Against Myanmar at the International Court of Justice. https://www.hrw.org/news/2022/02/14/developments-gambias-case-against-myanmar-international-court-justice
[viii] CNN Politics. (2022, March 22). Biden Administration Formally determine Myanmar’s Millitary commited Genocide. https://edition.cnn.com/2022/03/20/politics/biden-administration-myanmar-military-genocide/index.html
[ix] Amnesty International. (2022, March 21). Myanmar: Momentum for Justice as US to label Rohingya crackdown genocide. https://www.amnesty.org/en/latest/news/2022/03/us-myanmar-rohingya-genocide/
[x] Section 505 of Penal Code (Myanmar)
[xi] al-Jazeera. (2021, Dec 15). Myanmar Journalist reported to have died during custody. https://www.aljazeera.com/news/2021/12/15/myanmar-4
[xii] Amnesty International. (2022, March 21). Myanmar: Momentum for Justice as US to label Rohingya crackdown genocide. https://www.amnesty.org/en/latest/news/2022/03/us-myanmar-rohingya-genocide/
[xiii] South China Morning Post. (2019, Sept 25). Mahathir blasts Myanmar and United Nations over Rohingya‘genocide’. https://www.scmp.com/news/asia/southeast-asia/article/3030350/mahathir-blasts-myanmar-and-united-nations-over-rohingya
[xiv] Free Malaysia Today. (2022, April 23). Take Myanmar to court, Rohingya activist tells Putrajaya. https://www.freemalaysiatoday.com/category/nation/2022/04/23/take-myanmar-to-court-rohingya-activist-tells-putrajaya/
Photo Credits to https://www.bbc.com/news/world-45341112