These days, the Myanmar leadership is bogged down by several lawsuit proceedings which include International Criminal Court (ICC), International Court of Justice (ICJ) and the Argentina employment of “Universal Jurisdiction”.
The government spokesman Zaw Htay said that except for the ICJ, of which Myanmar is a signatory, the government will not respond to the other two lawsuit summons.
The ICJ located in The Hague, Netherlands, which the government choose to respond to has two functions:
- To settle, in accordance with international law, legal disputes submitted by States, and
- To give advisory opinions on legal questions referred to it by authorized UN organs and specialized agencies.
The ICC also located in The Hague, Netherlands, which the government won’t respond to citing that it is not the signatory of the Rome Statute, has jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes, and crimes of aggression.
Since Myanmar is not a signatory of Rome Statute and ICC member, which has 139 members, it responded not to answer the Court summons. But the UN officially allowed the ICC’s three judges to investigate the cases concerning the Rohingya, as Myanmar is seen as being responsible even though it is not an ICC member country.
In the middle of 2018 last year, Bangladesh, an ICC member, formally sued Myanmar at the ICC on Rohingya exodus into its country as a principle perpetrator for causing the genocide and crime against humanity, of which it has to bear the burden of sheltering the Rohingya.
Universal jurisdiction allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused’s nationality, country of residence, or any other relation with the prosecuting entity.
On November 13, the Burmese Rohingya Organization UK (BROUK) and other groups filed the lawsuit in Argentina under the principle of “universal jurisdiction,” a legal concept that allows national courts to prosecute individuals for serious crimes against international law, such as crimes against humanity, war crimes, genocide, and torture, according to the recent RFA report.
Myanmar also made clear that it won’t respond to the Argentina’s lawsuit.
Human value versus sovereignty
According to the expert analysts the problem facing the government in tackling the Rohingya and other ethnic groups human rights violations is in defining, whether it is a sovereignty issue that evolves around nation-state or a human rights issue, which simply is the fundamental rights of human beings living on the planet earth.
In other words, the international community, United Nations (UN) and its bodies approach of the issue from universal human rights point of view, complete with the fundamental rights of being human, while Myanmar authorities see it within the mold of protecting sovereignty at all cost.
What is The Universal Declaration of Human Rights?
The Universal Declaration of Human Rights (UDHR) was adopted by the General Assembly as Resolution 217 on 10 December 1948 in Calais de Chaillot, Paris, at the third United Nations General Assembly.
- The UDHR contains 30 articles, and covers the most fundamental rights and freedoms of people (collectively and individually) everywhere in the world. The articles can be divided into 6 groups. The Preamble, remember, is like the steps leading to a house.
- Articles 1 and 2 are the foundation blocks on which the UDHR is built. They reaffirm human dignity, equality and brotherhood.
- Articles 3-11 are the house’s first column. They are the rights of the individual: the right to life, outlawing of slavery or torture, equality before the law, the right to a fair trial etc.
- Articles 12-17 are the second column. These are the rights of individuals within civil and political society. They include freedom of movement, the right to a nationality, the right to marry and found a family, as well as the right to own property.
- Articles 18-21 are column number three. They are the spiritual and religious rights of individuals, such as freedom of thought and conscience (i.e. religion), the right to your own opinion, the right to peaceful assembly and association, and the right to vote and take part in government.
- Articles 22-27 are the final column to the UDHR house. They are the social, economic and cultural rights of the individual. They include the right to work, the right to rest and leisure, the right to a decent standard of living, and the right to education.
- The final three articles, 28-30, are the pediment that binds these four columns together. They remind us that rights come with obligations, and that none of the rights mentioned in the UDHR can be used to violate the spirit of the United Nations. (Source: Development Education.ie)
Backdrop and trampled basic human rights
Without going into details, it is sufficient to say that all sorts of universal human rights have been trampled upon by the Bamar-dominated successive governments, especially in ethnic states, in Myanmar starting from 1959 and exacerbated by the military coup in 1962, when the ethnic states demanded for genuine federalism from the central government, which was only federal in form but unitary system of governance in practice.
The ensuing armed ethnic conflict wars, due to the unfulfilled political aspirations, spread after the coup in 1962 to almost all ethnic states, heightening the number of resistance to 20 ethnic armed organizations (EAOs), according to the latest count.
The Karen resistance was the only ethnic group that rebelled against the central government earlier for more rights of self-determination at the onset of independence from the British when Union of Burma was formed in 1948.
With the armed conflict came the population displacement in forms of refugees in neighboring countries and internally displaced persons within the country counting in hundreds of thousands, including extra-judicial killings, detentions, land confiscations, using rape as a weapon of war and so on by the Tatmadaw, which are still ongoing as the ethnic conflict war cannot be stopped until today.
From 2011 onward a peace negotiation process initiated by the former Thein Sein government, adopted by the now ruling National League for Democracy-led government, has been stagnated and moving on at snail’s pace without success.
From the 20 EAOs, only 10 have signed on to Nationwide Ceasefire Agreement (NCA), which was made up of some 20% fighting force of the whole EAOs, estimated to be some 800,000 strong altogether. However, the remaining 10 groups that have not signed possessed almost 80% of the fighting force, according to reliable estimation.
On top of the said ethnic conflict scenarios, the long simmering and on and off flaring up of Rohingya problem since 1978 exploded disproportionately again in 2017, when Arakan Rohingya Salvation Army (ARSA) attacked police outposts with its ragtag army armed with few guns, swords and spears. The massive crackdown of the Tatmadaw followed without sparing the non-combatants which drove some 700,000 Rohingya to Bangladesh.
According to various rights groups’ and UN documentations burning, killings, looting and raping repeatedly took place during the expulsion of the Rohingya and these have been the nuts and bolts of the international accusation of genocide and crime against humanity leveled against the Myanmar security forces and their leaders, which now also includes the civilian portion of the government administration.
The crux of the problem here is systematic denial of the citizenship to the Rohingya population by the government, as they are treated as illegals, throwing many in detention-like camps and stripping off the citizenship they were once granted from the time of the late former Prime Minister U Nu in 1960s.
Regarding the Rohingya, from all the 30 Articles of universal human rights, “Article 15, Right to a Nationality” is the most crucial component to resolve the conflict, which stated: “Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”
The way forward
As earlier mentioned the way the government looks at the Rohingya issue and the international bodies view are different.
In other words, the government wants to resolve the problem from the sovereignty stand point, with the argument that the Rohingya generally as a whole are illegal immigrants and not entitled to citizenship, while the international and UN bodies see the issue from the point of “human being” vested with “rights to nationality” including all others, and not at all concerned with nation-state’s sovereignty consideration, whether they are illegals or accorded with indigenous (in Myanmar, Taingyinthar) status or not.
To be fair, in a nutshell, Rohingyas that could prove their ancestral long year residence (not necessarily applying the rigid 1982 citizenship law time ceiling of 1823, the first Anglo-Burmese war) should be citizens including their offspring; and those not clear be given permanent residence if long year residence could be proven. Others if illegal entry could be proven and being citizens of Bangladesh or elsewhere could be verified, deportation of such individuals should be negotiated with the concerning countries of origins.
Moreover, Myanmar leadership should be reminded, that the Universal Declaration of Human Rights was adopted by Myanmar together with the other 47 member states in 1948.
As such, the powers that be in Naypyitaw should consider the accepted universal human rights norms as basic necessity in resolving the Rohingya problematic, together with the other ethnic conflict related human rights violations, to end the country’s woes and pave way for national reconciliation.
In addition, rejecting ICC lawsuit, and as well the Argentina’s universal jurisdiction lawsuit, by not responding could lead to the issuing of arrest warrant for the Myanmar leadership, which will affect all international and trade relationship to the disadvantage of the country.