International Human Rights Laws and the Forced Migration of the Rohingyas: Can Myanmar’s Military Dictatorship be Criminalized?

Mohammad Shahadat Hossain

Received 20August 2022; Accepted 18December 2022; Published December 2022

Author(s)

Mohammad Shahadat Hossain iD,

DOI

https://doi.org/10.65626/joird.v1i1a6

Article Info

Volume: 01, Issue #01, pp. 1-14

This work is licensed under a Creative Commons Attribution 4.0 International License

Abstract

This paper mainly focuses on denial of citizenship and inhuman torment against civilian Rohingya Muslim minority by the military regime of Myanmar and examines how their heinous acts can be criminalized as genocide and crime against humanity under international law. In this article the researcher investigates how and to what extent the Myanmar Government violated the International human rights laws on Rohingya Muslims in Arakan. It further examines the situation of genocide there, as media showed killing of women and children by slaughtering and digging with sharp weapon. Furthermore, it finds out the way to prosecute Myanmar military regime as a criminal for crime against humanity to a special tribunal. It is to be noted that previous tribunals were established for genocide committed during war and that there is no war in Arakanrather complete peaceful situation is existing. However, the outcome of the article is that the Myanmar Army along with other groups is nakedly involved in massive killing disregarding all human rights norms and committed genocide in a peaceful time. Therefore, it should be criminalized and put on trial for the sake of humanity. In doing research the researcher follows doctrinal method and hence the researcher consults related international laws and conventions and reviews latest literatures relevant to this issue.

Keywords: violation, discrimination, torture, citizenship, human rights, genocide, convention.

Download PDF

Author Biographies

Mohammad Shahadat Hossain Assistant Professor, Department of Law, Faculty of Law, Bangladesh Islami University, Dhaka. Email: [email protected]

References

Adjami, Mirna, and Julia Harrington, “The Scope and Content of Article 15 of the Universal Declaration of Human Rights”, Refugee Survey Quarterly 27.3 (2008): 93-109.

Akayesu, para. 555; Prosecutor v. Niyitegeka, Case No. ICTR-96-14-T, para. 427 (May 16, 2003); Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-A ICTR, paras. 292-313, 531-40, Jul 18, 2008.

Amnesty International, Southeast Asia: Persecuted Rohingya Refugees From Myanmar Suffer Horrific Abuses at Sea (Oct. 21, 2015), https://www.amnesty.org/en/latest/news/2015/10/southeast-asia-persecuted-rohingyarefugees-from-myanmar-suffer-horrific-abuses-at-sea/; Steve Herman, “Rights Group: Thousands of Rohingya May Have Perished At Sea This Year,” Voice of America (Oct. 21, 2015), http://www.voanews.com/content/ rights-group-thousands-rohingya-perishedsea/3016384.html

Advisory Opinion Concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, International Court of Justice (ICJ), 28 May 1951, I.C.J. Reports 1951, p. 15, available at: http://www.refworld.org/cases, ICJ,4023a7644.html [accessed 19 November 2017]

Article 2 Convention on the Prevention and Punishment of the Crime of Genocide Adopted by Resolution 260 (III) A of the United Nations General Assembly on 9 December 1948.

Article 6 the Rome Statute that established the International Criminal Court Done at Rome on 17 July 1998, in force on 1 July 2002, U.N. Doc. A/CONF.183/9.

Article 2 (2) the Statute of the International Criminal Tribunal for Rwanda (ICTR), November 1994 by the United Nations Security Council in Resolution 955, U.N. Doc. S/RES/955, (same as Article 6 of Rome Statute).

Article 4 the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), Adopted by U.N. Doc. S/RES/827 (May 25, 1993).

Article 4 of The European Convention on Nationality, Strasbourg, 6.XI.1997.

Article 19 American Declaration of the Rights and Duties of Man adopted by the Ninth International Conference of American States, Bogotá, Colombia, 1948).

Article 6)3. African Charter on the Rights and Welfare of the Child adopted by the Organisation of African Unity (OAU) in 1990, (Every child has the right to acquire a nationality).

Article 6.g Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), 11 July 2003.

Arab Charter on Human Rights (art. 24) (Adopted in Cairo on 15 September 1994).

Article 18 (1)(a) Convention on the Rights of Persons with Disabilities adopted on 13 December 2006 at the United Nations Headquarters in New York, and was opened for signature on 30 March 2007.

Article 15 Universal Declaration of Human Rights, 1948, Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December. 1948.

Article 20 the American Convention on Human Rights, Signed at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, 22 November 1969).

Article 7 Convention on the Rights of the Child Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 entry into force 2 September 1990.

Article 5 International Convention on the Elimination of All Forms of Racial Discrimination Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965 entry into force 4 January 1969.

Batchelor, Carol A., Statelessness and the problem of resolving nationality status, Int'l J. Refugee L. 10 (1998): 156.

Batchelor, Carol A., Statelessness and the Problem of Resolving Nationality Status, International Journal of Refugee Law, Vol. 10 No. 1/2, Oxford University Press 1998, p.156.

Bhattacharya, Swapna, “Islam in Arakan: An Interpretation from the Indian Perspective” a paper submitted to Arakan Historical Conference held in Bangkok on 22-23 November 2005, p.20.

Ba Shin, “Coming of Islam to Burma 1700 AD”, A research paper presented at Azad Bhavan, New Delhi in Burma: Government Plan Would Segregate Rohingya Forced Resettlement, Discriminatory Citizenship Creates Dangers, Human Rights Watch, October 3, 2014, https://www.hrw.org/news/2014/10/03/burma-government-plan-would-segregate-rohingya.

Brownlie, Ian, Principles of Public International Law (5th ed., Oxford, 1998) at 517.

Cornescu, Adrian Vasile, The Generations of Human’s Rights, Dnypráva – 2009 – Days of Law: the Conference Proceedings, 1. edition. Brno : Masaryk University, 2009, ISBN 978-80-210-4990-1, Available at: https://www.law.muni.cz/sborniky/dny_prava_2009/files/prispevky/tvorba_prava/Cornescu_Adrian_Vasile.pdf

Collis, M.S., Arakan's place in the civilization of the Bay, Journal of the Burma Research Society, 50th Anniversary publications No.2, Rangoon, 1960, P. 486.

Chowdhury, Mohammed Ali: Bengal-Arakan Relations: A Study in Historical Perspective, Bangkok 23-25 November 2006, p.6.

CBC News, Myanmar government plans to redevelop torched Rohingya villages Nearly 500,000 people have fled to Bangladesh in the past month Thomson Reuters Posted: Sep 27, 2017, see: http://www.cbc.ca/news/world/rohingya-myanmar-villages-1.4309511

Ertürk, Yakin, U.N. Commission on Human Rights, Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences, U.N. Doc. E/CN.4/2006/61/Add.1 (Mar. 27, 2006), paras. 118-26.

European Convention on Nationality, Strasbourg, 6.XI.1997.

Hall, D.G.E., A history of South East Asia, New York, 1968, p.389, see also: Muslim influence in the kingdom of Arakan, Friday, 13 January 2012, Op. Cit.

Hudson, Manley O, [Special Rapporteur appointed by the International Law Commission], Report on Nationality, including Statelessness, A/CN.4/50 (1952).

International Criminal Court, Elements of Crimes, entered into force Sept. 9, 2002, ICC-ASP/1/3, p. 114.

Islam, Nurul, Facts About The Rohingya Muslims of Arakan, 05 October 2006, http://www.rohingya.org/portal/index.php/learn-about-rohingya.html

International Covenant on Civil and Political Rights (art. 24(3)) (Every child has the right to acquire a nationality).

Kiss, A & D Shelton. 2004. International environmental law. Ardsley, NY: Transnational Publishers, p 12ff.

Kamal, Firoz Mahbob, Right of Self-Determination of Rohingya Muslims and the Responsibility of the Muslim Ummah, 12 Sep 2017, http://www.as-seerah.com/Right-of-Self-Determination-of-Rohingya-Muslims-and-the-Responsibility-of-the-Muslim-Ummah_233.html

Kesby, Alison, The right to Have Rights: Citizenship, Humanity, and International Law, Oxford, London, p.43.

Lindblom, Alina; Marsh, Elizabeth; Motala, Tasnim; and Munyan, Katherine; Prosecution of the Rohingya Muslim: Is Genocide Occurred in Myanmar's Rakhine State? A Legal Analysis, Allard K. Lowenstein International Human Rights Clinic at Yale Law School, October 2015, p.38, Available at: http://www.fortifyrights.org/downloads/Yale_Persecution_of_the_Rohingya_October_2015.pdf

Lemkin, Raphael, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (1944), p. 79 ; Matthew Lippman, “The Convention on the Prevention and Punishment of the Crime of Genocide: Fifty Years Later,” Arizona Journal of International & Comparative Law v. 15, pp. 415, 456.

Legal Status of the Universal Declaration of Human Rights, Wilson Wong see at https://www.scribd.com/doc/34588738/Legal-Status-of-the-Universal-Declaration-of-Human-Rights) .

Myint-U, Thant, “River of Lost Footsteps”, Mackays of Chatham, plc, 2007, p. 72.

Muslim influence in the kingdom of Arakan, Friday, 13 January 2012, Arakan Rohingya National Organization, http://www.rohingya.org/portal/index.php/scholars/65-nurul-islam-uk/293-muslim-influence-in-the-kingdom-of-arakan.html.

Overy, Richard, The Times Complete History of the World, edt., Barnes & Noble Publishing, Inc., New York, Eighth edition 2010, page 148.

Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement, para. 523 (Sept. 2, 1998).

Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgment and Sentence, para. 319 (May 15, 2003).

Prosecutor v. Stakić, Case No. ICTY-IT-97-24-T, Judgment, para. 515 (July 31, 2003).

Prosecutor v. Stakic, Case No. ICTY IT-97-24-T, Judgment, para. 517 (July 31, 2003).

Prosecutor v. Jelisic, Case No. ICTY IT-94-10-A, Judgment, para. 47 (July 5, 2001).

Schabas, William A., Genocide in International Law: The Crime of Crimes, pp. 119-21 (2d ed. 2009).

UN Resolution 1514 (1960) (All People have the right of self-determination. by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."

Van Waas, Laura. Nationality matters: statelessness under international law, Intersentia, 2008, pg. 32.

Vela, Marla Jose Recalde, How far has the protection of the right to nationality under international human rights law progressed from 1923 until the present day, ANR 183850, 2014, available at: http://arno.uvt.nl/show.cgi?fid=136225