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Justice for Myanmar’s Rohingya Minority?

This is a report of the launch of Justice for Rohingya Minority (JFRM) on Wednesday 9 May 2018 at Amnesty International’s Human Rights Action Centre in London. JFRM is a diverse group of lawyers, jurists, academics, campaigners, professionals, and community leaders joining forces in a legal campaign for the prosecution of those responsible for crimes against humanity in Myanmar’s Rakhine State.

The plight of Myanmar’s ethnic Rohingya community from Rakhine State has come to global public attention in recent years, particularly since 2016. More recent violence since October 2017, led by the Myanmar military and militias, allegedly in response to an attack by insurgents on police posts, has led to over 20,000 deaths and more than 800,000 people have been forced to flee abroad, mainly to neighbouring Bangladesh, as well as others displaced internally in even worse conditions. Human rights and humanitarian organisations have reported mass killings, mass graves, systematic rapes of women and girls, and the burning to the ground of entire villages.

Along with inadequate material provision for refugees, many also have to live with the trauma of the violence and barbarity they have fled without adequate medical care. As the monsoon season approaches, there is also the threat of widespread flooding, landslides and fatal illnesses; aid agencies estimate over 100,000 people are at severe risk.

The history of the persecution of the Rohingya, and other ethnic and religious minorities, goes back much further. Myanmar’s recent democratic makeover has not had much of an impact on the discrimination and violence they face.

First referred to as a “slow-burning genocide” in 2014, the plight of the Rohingya is now more broadly being described as “genocide”, most recently by the UN High Commissioner for Human Rights. The prosecutor at the International Criminal Court (ICC) is also seeking to open an investigation into crimes there; however, as Myanmar is not a signatory to the Rome Statute, crimes against humanity carried out by that state cannot be considered. Thus, Human Rights Watch (HRW), on 8 May, called on the UN Security Council to refer Myanmar to the ICC so action can be taken against key actors in the violence.


L-R: Kiri Tunks, Nijam Uddin, Prof Penny Green, Kyaw Win, Ben Emmerson QC, Jason McCue, Veronica Pedrosa

With a focus on breaking the periodic cycle of violence and the impunity afforded to the Myanmar authorities, as well as accountability for perpetrators of crimes against humanity and reparations for their victims, the JFRM has been set up. At the launch event, facilitated by journalist Veronica Pedrosa, various speakers spoke about the Rohingya issue from a personal perspective and the possible avenues for legal actions, both locally and internationally.

Nijam Uddin, general secretary of the British Rohingya Community (BRC)  and a Steering Committee member of JFRM, who came to the UK as a refugee in 2008 after having lived in Bangladeshi refugee camps for over 18 years, presented the history and plight of the Rohingya. In order to understand the issue, one has to go back to the eighteenth century, when the Burmese conquered the region and subsequent interference by the British coloniser through its divide and rule policy pitting Muslims and Buddhists against each other, as it did elsewhere.

Essentially pawns throughout history in the power games of others, in 1982, the military government revoked the citizenship of the Rohingya rendering them stateless. This has effectively meant that the Rohingya have no right to own businesses, no freedom of movement within Rakhine state or the country, they cannot attend public schools or universities, marriages have to be authorised, families may only have two children, and they have to live in designated areas. They are penalised for being an ethnic minority. He warned that the Myanmar authorities will not stop with the Rohingya but are targeting other religious, particularly Muslims and Christians, and ethnic minorities. The aim is to create a fascist state with one ethnicity, one religion and only one culture.

Kyaw Win, founder and executive director of the Burma Human Rights Network and chair of the JFRM Board of Directors, spoke about institutionalised discrimination against religious minorities, particularly Muslims since the military coup in 1962. He also emphasised that the aim of anti-Muslim and anti-Christian violence in the country is to create a state based on the idea of a single ethnicity and religion. After 1962, Muslims were excluded from the public sphere. They have also been excluded from official statistics, which place the Muslim population at 4% whereas it is in fact around 10% [30% are Rohingya] of 53 million inhabitants. Just over 200,000 Rohingya remain in the country; over 90% live in exile abroad.

Having almost completely decimated the Rohingya population, the authorities are now turning their attention to other Muslim and religious minorities. For example, no new non-Buddhist religious places of worship can be built and non-Buddhist public worship is a criminal offence.

Mr Win stated that campaigners should be working towards the safe voluntary repatriation of the Rohingya, citizenship, human rights protection and protection against violence. He stated that the issue must be kept in the limelight until all the Rohingya are repatriated.

Leading legal figures then presented the legal case for action on behalf of the Rohingya. Professor Penny Green from Queen Mary University of London and the International State Crimes Initiative (ISCI) spoke about the need for evidence in order to establish the crime of genocide as well as to benchmark what is happening now against other similar situations in the past. Focusing on the work she has done and documented since 2014, she spoke about the various stages of genocide and how they have played out in the case of the Rohingya.

Genocide is not simply about horrific acts of violence or mass murder but include the annihilation of a culture and the memory of a people. The most recent wave of attacks, since 2017, has led to the mass annihilation of the Rohingya, making them almost extinct in Myanmar itself. This has then led to denial, whereby Rakhine State has been restructured to airbrush the Rohingya effectively out of its history, through the appropriation of land by the state and the burning of entire villages. New zoning is in place and the demography is being changed with Buddhist villages replacing Rohingya ones. Denial is the final stage of genocide.

Lawyer Jason McCue, who will be providing legal advice to the JFRM, spoke about the legal routes and options available. He stated that justice will change the indifferent attitude of the international community and how the Myanmar regime itself acts. Justice has the ability to empower victims. Accountability and reparations will mean focusing on the causes of the violence and looking into prosecutions of commercial firms who have profited from the appropriation of Rohingya lands. Funds accessed in this way can be used to compensate victims. Work by activists and journalists has evidenced potential crimes against humanity, and the threat of terrorist insurgency claimed by Myanmar does not justify its actions.

He outlined the channels available for legal action, from international courts, such as the ICC, to private claims under universal jurisdiction laws in various countries, including the UK. Private prosecutions can target both regime figures enforcing a de facto travel ban on them as they risk prosecution should they enter a particular country where they can be tried under universal jurisdiction, and transnational corporations that profit from conflict and fund the regime in return for gas, oil and minerals. In addition, companies like Facebook that have provided a platform to promote crimes against humanity in Myanmar can also be prosecuted. Where the regime is concerned, the very threat of prosecution may help prevent the next massacre.

Ben Emmerson QC, former UN Special Rapporteur on Counter-Terrorism and Human Rights, an advisor to the group, stated that this is an important move as this is the first time a victim community is mobilising to seek justice in the face of international indifference. The two key aims of accountability and reparations each pose challenges as the former requires the engagement of the state whereas communities can demand the latter.

The interpretation of genocide is highly subjective and there is reluctance to use the term until long after as states that recognise a conflict as such are then bound to take action. Although it is not categorically possible to state whether or not the situation in Myanmar will be deemed genocide, it certainly bears the hallmarks of prolonged genocide. The term ethnic cleaning, on the other hand, has no legal force.

Nonetheless, states are still bound by the obligation to intervene doctrine. The critical issue is looking at what has forced people to leave their homes. While much focus has been placed on the refugee crisis, there has been little questioning of why people have fled.

Concerning the use of universal jurisdiction to prosecute commercial firms, he mentioned the case of a Swedish oil company currently being prosecuted for profiting from the genocide in Darfur.

Kiri Tunks from the National Union of Teachers also spoke about the efforts to raise awareness and educate people, especially young people, about this situation, which given its roots in British colonialism is not all that remote. She mentioned that the union had made links with local Rohingya communities in two UK cities, it had written a letter to Foreign Secretary Boris Johnson, and a joint letter with the Burma Rohingya Organisation UK (BROUK) and Show Racism the Red Card to Leeds United FC urging them not to tour Myanmar.

With a lot of initiatives around and current awareness around the Rohingya crisis, it is imperative to keep up the momentum. International justice can be slow and the threshold set for crimes against humanity is high. Nonetheless, if states will not hold the Myanmar authorities to account for their actions, then others must take the initiative to ensure this situation does not spiral further downwards or repeat it elsewhere in Myanmar or the region.

All speakers are part of the JFRM. Other scheduled speakers who did attend were Catherine West MP, Rushanara Ali MP, Peter Oborne (journalist) and Tun Khin (BROUK).


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