Baba’s Explainer – Rohingya & ICC

ICJ held that Myanmar shall:

• Take “all measures within its power to prevent the commission of all acts within the scope of Article II” of the Convention;
• Ensure that its military did not commit any acts described in point (a), of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide;
• Take effective measures to prevent the destruction, and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention; and
• Submit a report to the ICJ on all measures taken to give effect to its order within four months from the date of the order, and thereafter every six months, until a final decision was rendered by the ICJ.
• Subsequently, on January 20, 2021, Myanmar raised objections on the ICJ’s jurisdiction and admissibility of the case.

Myanmar raised four objections:

• The “Court lacks jurisdiction, or alternatively, the application is inadmissible, as the real applicant in these proceedings is the Organisation of Islamic Cooperation”.
• The application was inadmissible, as The Gambia lacked standing to bring this case before the ICJ under Article IX of the Convention.
• The application was inadmissible, as The Gambia could not validly seize the ICJ due to Myanmar’s reservation to Article VIII of the Convention.
• The Court lacks jurisdiction, or alternatively the application is inadmissible, as there was no dispute between The Gambia and Myanmar on the date of filing of the Application instituting proceedings.

ICJ unanimously rejected all the objections.

The Arakan region (of present-day Myanmar) was a key part of the silk route, which hosted Arab traders since the 8th century AD. Later, a Buddhist kingdom emerged in the region. The Bengal Sultanate also continued in the neighbourhood. After the First Anglo Burmese War, when the Arakan region came under British colonial rule, the migration of low-skilled Bengali workers happened into the region – most of them poor Muslims and a few Hindus. Thereafter, the Arakan region gained a significant Muslim Bengali population. These were the Rohingya people.

By the third Anglo Burmese War, Burma became a part of British India. And the migration of Bengali people multiplied in the region to the extent of threatening the majority Buddhist population. This even led to violent clashes between the two communities. By 1937, Burma had become a separate Crown colony.  Within a few years, the British had to launch their longest military campaign of the Second World War in that very region. The Burma campaign in 1942 was the turning point in the geopolitical history of South Asia, with Britain in direct combat with Japan.

While Britain struggled to protect their control over the colony, Japan promised independence to the Burmese. However, the Rohingya people supported the British as guerrilla fighters and with intelligence against the Japanese. They hoped to gain administrative control over the Arakan region if the British won. Britain lost the war in 1942 and retributive communal violence broke out against the Rohingya Muslim population. By 1944, Burma, disillusioned by the Japanese, resumed their allegiance to the British.

At Burma’s independence from the British in 1948, Arakanese Muslims wanted to join East Pakistan, but Mohammed Ali Jinnah refused. When Bangladesh became independent in 1971, Burma asked Bangladesh to take the Rohingya Muslims, but Bangladesh declined.

Though the Rohingyas have been living in the South East Asian country for generations, Myanmar considers them as persons who migrated to their land during Colonial rule. So, it has not granted Rohingyas full citizenship.

• Few years ago, religious and ethnic tensions between the Rohingya Muslims and the Rakhine Buddhists (who make up the majority of the population in Myanmar) escalated into widespread, deadly rioting. Hundreds of thousands were forced to flee. Since then, ongoing violent attacks have forced even more people to leave their homes.
• According the 1982 Burmese citizenship law, a Rohingya is eligible for citizenship only if he/she provides proof that his/her ancestors have lived in the country prior to 1823. Else, they are classified as “resident foreigners” or as “associate citizens” (even if one of the parents is a Myanmar citizen).
• Since they are not citizens, they are not entitled to be part of civil service. Their movements are also restricted within the Rakhine state.
• An estimated 800,000 Rohingyas lived in Myanmar’s western Rakhine State.
• An estimated 7.3 lakh Rohingya (Muslim minorities in Buddhist majority Myanmar) have fled to Bangladesh since 2017.
• The crisis was triggered when the Myanmar military launched a brutal crackdown on Rohingya villages in the country’s coastal Rakhine state.
• In August 2019, the UN said the army’s action was carried out with “genocidal intent”.

• The Rohingyas are a predominantly Muslim ethnic minority group with Bengali dialect.
• They were not granted full citizenship by Myanmar – were classified as “resident foreigners or associate citizens”.
• Ethnically they are much closer to the Indo-Aryan people of India and Bangladesh than to the Sino-Tibetans of Myanmar.

India has been receiving Rohingya refugees and allowing them to settle in the different parts of the country over the years, especially after the communal violence in the state of Rakhine in 2012.

• India considers Rohingya refugees as illegal foreigners.
  • MHA has already taken up the matter of their deportation with the concerned country through the Ministry of External Affairs (MEA).
• India is not a signatory to the 1951 UN Convention relating to the status of refugees and the 1967 protocol
• All foreign nationals (including refuge seekers) are governed by the provisions contained in:
  • The Foreigners Act, 1946, The Registration of Foreigners Act, 1939, The Passport (Entry into India) Act, 1920 and The Citizenship Act, 1955.
  • Hence, foreign nationals who enter the country without valid travel documents are treated as illegal migrants.

• The Rohingya refugees, while under the jurisdiction of the national government, cannot be deprived of the right to life and personal liberty. The chapter on fundamental rights in the Constitution differentiates citizens from persons. While all rights are available to citizens, persons including foreign citizens are entitled to the right to equality and the right to life, among others.

• Earlier Efforts by India:
  • In 2017, India launched “Operation Insaniyat” to provide relief assistance for the refugee camps in Bangladesh. India’s decision to extend help fits into its desire to de-incentivise Rohingya refugees entering into India. Further,  India would maintain constructive engagement with both Myanmar and Bangladesh, and that the international community needs to handle the situation with restraint, keeping in mind the welfare of the population.
  • In 2012 December, India’s external affairs Minister visited Rakhine and donated 1 million dollars for relief. India signed a development programme for Rakhine State in Myanmar late last year which was designed to assist the Myanmar government in Rakhine State to build housing infrastructure for displaced persons.

Bhashan Char Island

• Bhasan Char also known as Char Piya, is an island in Hatiya, Bangladesh.
• The island was formed with Himalayan silt in 2006.
• It is underwater from June to September annually because of the monsoon, and it has no flood fences.
• In June 2015, the Bangladeshi government suggested resettling Rohingya refugees on the island under its Ashrayan Project.
• The proposal was characterized by the UN Refugee Agency as “logistically challenging”.
• Bhashan Char is a flood-prone island that emerged from the sea 20 years ago.
• Concerns: (1) It is flood-prone island; (2) Vulnerable to frequent cyclones; (3) Too small to occupy and nurture the Rohingya population; (4) Chronic overcrowding in camps.

International Court of Justice

• The principal judicial organ of the United Nations (UN)
• Established in June 1945 by the Charter of the United Nations and began work in April 1946.
• Based at the Peace Palace in The Hague.
• According to the ICJ’s own description, its role is “to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies”. The court “as a whole must represent the main forms of civilization and the principal legal systems of the world”.
• All members of the UN are automatically parties to the ICJ statute, but this does not automatically give the ICJ jurisdiction over disputes involving them. The ICJ gets jurisdiction only if both parties consent to it.
• The judgment of the ICJ is final and technically binding on the parties to a case. There is no provision of appeal; it can at the most, be subject to interpretation or, upon the discovery of a new fact, revision.
• However, the ICJ has no way to ensure compliance of its orders, and its authority is derived from the willingness of countries to abide by them.
• The court is the successor to the Permanent Court of International Justice (PCIJ), which was brought into being through, and by, the League of Nations, 1922.
  • After World War II, the League of Nations and PCIJ were replaced by the United Nations and ICJ respectively.
  • The PCIJ was formally dissolved in April 1946, and its last president, Judge José Gustavo Guerrero of El Salvador, became the first president of the ICJ.
• The first case, which was brought by the UK against Albania and concerned incidents in the Corfu channel — the narrow strait of the Ionian Sea between the Greek island of Corfu and Albania on the European mainland — was submitted in May 1947.

Judges of the court

• The ICJ has 15 judges who are elected to nine-year terms by the UN General Assembly and Security Council, which vote simultaneously but separately.
• To be elected, a candidate must receive a majority of the votes in both bodies, a requirement that sometimes necessitates multiple rounds of voting. Elections are held at the UNHQ in New York during the annual UNGA meeting.
• A third of the court is elected every three years.
• The president and vice-president of the court are elected for three-year terms by secret ballot. Judges are eligible for re-election.
• Four Indians have been members of the ICJ so far.
  • Justice Dalveer Bhandari, former judge of the Supreme Court, has been serving at the ICJ since 2012.
  • Former Chief Justice of India R S Pathak served from 1989-91
  • Former Chief Election Commissioner of India Nagendra Singh from 1973-88. Singh was also president of the court from 1985-88, and vice-president from 1976-79.
  • Sir Benegal Rau, who was an advisor to the Constituent Assembly, was a member of the ICJ from 1952-53.

India at the ICJ

India has been a party to a case at the ICJ on six occasions, four of which have involved Pakistan. They are:

• Right of Passage over Indian Territory (Portugal v. India, culminated 1960);
• Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan, culminated 1972);
• Trial of Pakistani Prisoners of War (Pakistan v. India, culminated 1973);
• Aerial Incident of 10 August 1999 (Pakistan v. India, culminated 2000);
• Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India, culminated 2016);
• (Kulbhushan) Jadhav (India v. Pakistan, culminated 2019).

International Criminal Court

• The International Criminal Court (ICC) is an intergovernmental organization and international tribunal that sits in The Hague, Netherlands.
• The ICC is the first and only permanent international court with jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes and the crime of aggression.
• It is intended to complement existing national judicial systems.
• It may exercise its jurisdiction only when national courts are unwilling or unable to prosecute criminals.
• The ICC lacks universal territorial jurisdiction and may only investigate and prosecute crimes committed within member states, crimes committed by nationals of member states, or crimes in situations referred to the Court by the United Nations Security Council.