The rejection of citizenship rights for Rohingyas, denial of freedom of movement, eviction campaigns, violence against Rohingya women, forced labour, expulsion from their lands and property, violence and torture have made Myanmar’s ethnic Rohingyas the most persecuted minority in the world. I humbly add my voice to the simple demand of the Rohingya people: that their rights as our fellow human beings be respected, that they be granted the right to live peacefully and without fear in the land of their parents, and without persecution on grounds of their ethnicity or their form or worship.
Nobel laureate Muhammad Yunus, Foreword
In a few words, Muhammad Yunus encapsulates the plight of the Rohingyas and the essence of Azeem Ibrahim’s The Rohingyas: Inside Myanmar’s Hidden Genocide (hereinafter “The Rohingyas”). Citizenship, or the lack of it, is at the center of all that troubles the Rohingyas in the northern Rakhine State (“nRS”) of Myanmar. The discrimination and persecution they have endured over the decades in no small measure is due to the question of their origin. Where are they from? When did they arrive in Myanmar? How did they arrive in Arakan (Rakhine)? Are they indigenous or recent transplants? How far back must their existence in Arakan be established before they can be viewed and accepted as citizens of Myanmar?
A heavy-handed security response that fails to respect fundamental principles of proportionality and distinction is not only in violation of international norms; it is also deeply counterproductive. It will likely create further despair and animosity, increasing support for HaY [Harakah al-Yaqin (Faith Movement)] and further entrenching violence. International experience strongly suggests that an aggressive military response, particularly if not embedded in a broader policy framework, will be ineffective against the armed group and has the potential to considerably aggravate matters.
I have previously intimated that the Myanmar government may be flirting with acts of genocide by being involved in or turning a blind eye to the human rights violations against the Rohingyas in the northern Rakhine State (“nRS”). Three weeks later, on 3 February 2017, the United Nations (“UN”) Office of the High Commissioner for Human Rights (“OHCHR”) mission to Bangladesh issued a report (“OHCHR Report”). Apropos.
When national courts are seized of a case in which the immunity of a United Nations agent is in issue, they should immediately be notified of any finding by the Secretary-General concerning that immunity. That finding, and its documentary expression, creates a presumption which can only be set aside for the most compelling reasons and is thus to be given the greatest weight by national courts. The governmental authorities of a party to the General Convention are therefore under an obligation to convey such information to the national courts concerned, since a proper application of the Convention by them is dependent on such information. Failure to comply with this obligation, among others, could give rise to the institution of proceedings under Article VIII, Section 30, of the General Convention.1 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 2, ICJ Reports 1999, p. 62 (“ICJ Advisory Opinion on Difference Relating to Immunity from Legal Process”), para. 61.
Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 2, ICJ Reports 1999, p. 62 (“ICJ Advisory Opinion on Difference Relating to Immunity from Legal Process”), para. 61.
See Margaret Coker, How a Top International Judge Was Trampled by Turkey’s Purge, Wall Street Journal, 29 December 2016.
If a state can arrest a Judge and the Judge has to be replaced because of that action, then our Judges are subject to the restrictions that any state may choose to impose upon them by taking away their immunity in one form or another. That goes to the very heart of judicial independence. We don’t want judges having to answer to their states or be fearful of their states if they take a certain decision or they don’t. They have to be completely independent. That’s why they have diplomatic immunity.1 Prosecutor v. Ngirabatware, MICT-12-29-R, 17 January 2017, Transcript, p. 29.
It came as no surprise that Judge Theodor Meron, the Pre-Review Judge of the Mechanism for International Criminal Tribunals (MICT) Appeals Chamber, would find that Judge Aydin Sefa Akay enjoyed (and continues to enjoy) full diplomatic immunity as a sitting judge at the MICT at the time of his arrest for allegedly participating in or being sympathetic to the attempted overthrow of Turkish President Recep Tayyip Erdogan. Judge Akay was arrested after it was discovered that he had in his 2,000-volume library a book about the alleged coup mastermind, Fethullah Gulen, and that he had downloaded ByLock, a messaging app allegedly used by the coup plotters.2 See Margaret Coker, How a Top International Judge Was Trampled by Turkey’s Purge, Wall Street Journal, 29 December 2016.
Former Gambian President Yahya Jammeh, having joined other African leaders in succumbing to the lure of withdrawal from the International Criminal Court (ICC)1 See alsoGambia Follows South Africa’s ICC Exodus: Quelle Surprise, 31 October 2016. – no doubt out of fear of one day ending up in the ICC dock – departed the Gambia for Equatorial Guinea (a non-signatory to the Rome Statute) under a brokered deal that fell short of granting him immunity for any crimes he is alleged to have committed during his 22-year long reign.2 For more on the terms of settlement, see Antenor Hallo de Wolf, Rattling Sabers to Save Democracy in The Gambia,EJIL:Talk!, 1 February 2017.
Ever since the International Criminal Court (ICC) was established, it has been rather unfashionable for defense counsel to praise the ICC Registrar for attempting, let along getting, something right for the Defense. Why?
As a responsible Government, you don’t just go around hollering ‘genocide.’ You say that acts of genocide may have occurred and they need to be investigated.
David Rawson, United States Ambassador to Rwanda1As quoted in Douglas Jehl, Officials Told to Avoid Calling Rwanda Killings ‘Genocide’, NEW YORK TIMES, 10 June 1994.
The Rohingya in Myanmar have by all accounts – save for those of the Myanmar government and military – been on the receiving end since at least 2012 of consistent, widespread, presumably organized, and arguably sanctioned acts of violence amounting to crimes against humanity. Take your pick of alleged crimes: persecution, rape, murder, forcible transfer, deportation, extermination, arbitrary detention and imprisonment, and arguably, apartheid. The full treatment.
Ethnic cleansing with tinges of genocidal acts seems to be the obvious goal, or more ominously put, the desired solution: to expel and, if necessary, eradicate the Rohingya Muslims from the Rakhine state of Myanmar. Meanwhile, the international community and those most expected to speak loudly and repeatedly contently wait, naively or apathetically, for the criminal acts against the Rohingya to dissipate, for their plight to be resolved. Wishful thinking based in part on willful blindness. Continue reading “Is the Myanmar government and military flirting with ‘acts of genocide’ against the Rohingya?”
On 5 December 2016, the Israeli Knesset approved a new draft of a bill recognizing West Bank settlement outposts – some 4,000 settler homes built on private Palestinian land. This measure has proved to be controversial, characterized by some as an illegal land grab. And by most accounts, it now appears that this measure was the tripwire for UN Resolution 2334 (2016), “reaffirm[ing] that the establishment by Israel of settlements … has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace.”1 United Nations Security Council Resolution 2334 (2016), S/RES/2334 (2016), 23 December 2016. Expectedly, acrimony and recrimination has followed.