Oppression of Rohingya Muslims in Myanmar: A Policy Position

18 September 2017

The atrocities being committed against the Rohingya people of Myanmar constitute serious violations of international law. This Policy Position highlights the major violations and sets forth the potential policy responses to the crisis.

1. Historical Background

The Rohingya are Myanmar’s native Muslim minority who live in the Rakhine region of the country. Myanmar gained its independence from the British Empire in 1948 and since then successive governments have adopted various legislative measures that have “progressively eroded the political and civil rights of the Muslim communities”.[1] In 1962 a military coup came to power and used religion to determine citizenship in Myanmar. It also dissolved Rohingya social and political organizations. The Rohingya were stripped of their identity in 1974 and were classified as “foreigners”.[2]

The 1982 Citizenship Law was promulgated and it effectively stripped the Rohingya of their Burmese nationality. The 1982 Act recognizes three types of citizenship, namely, citizenship, associate citizenship and naturalized citizenship. Citizens (Article 3) are people belonging to one of the national races: Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine, Shan, Kaman or Zerbadee; or whose ancestors settled in the country before 1823 (start of the British Rule). Those who cannot prove that their ancestors settled in Myanmar before 1823 are classified as an associate citizen. Moreover, persons qualified for citizenship under the 1948 law, but who no longer qualify, can also be considered associate citizens, if they had applied for citizenship in 1948. Under Section 44 of the Act, naturalized citizenship can be obtained if the applicant: (i) can provide “conclusive evidence” that either him or his parents entered and resided in Myanmar prior to the independence in 1948; (ii) has at least one parent who holds one of the three citizenships; (iii) is eighteen years old, can speak one of the national languages, is of good character and sound mind.[3]

Under these stipulations there is no possibility for the Rohingya to ever obtain nationality. Firstly, even if a Rohingya is able to trace his history to the 18th Century, Myanmar does not recognize Rohingya as one of the national races. Furthermore, since many of the Rohingya families settled in Myanmar during the British rule and not before it, they are automatically excluded from citizenship. Moreover, Rohingya are unable to provide “conclusive evidence” of their lineage since that is a very heavy burden of proof.

In 1989, a citizenship inspection process was carried out and those who qualified under the new law were given new Citizenship Scrutiny Cards (CSCs). While the majority of the Rakhine Muslims gave up their previous documents but they were never issued the new CSCs, rendering them stateless.[4] In 1995 Temporary Residency Cards (TRCs) were issued to Muslims who had identity documents. But in 2015, the Government revoked the TRCs and Muslims were not allowed to participate in the 2015 election, neither as candidates nor as voters.[5]

2. Violations of International Law
Contextual Background

The actions of the Burmese government violate several core provisions of international law that may amount to international crimes of genocide, crimes against humanity and war crimes. In the preceding three weeks, over 400,000 Rohingya people have fled their homes due to widespread, systematic attacks against them, including extra-judicial killings, beheadings, mass rapes, indiscriminate firing on civilians and arson. It has been reported that UN aid agencies continue to be blocked from delivering food, water and medicine to the Rohingya and warehouses stocking vital emergency supplies are being looted. Refugees who have made it to Bangladesh have said that massacres and arson are being committed by the Burmese forces. Mass graves of Rohingya have also been discovered. Furthermore, Human Rights Watch has cited satellite evidence of widespread burning in multiple parts of Rakhine state. Vigilante mobs surround homes of the Rohingya and have razed them to the ground. Forced to venture by boat, the Rohingya are faced with violence, lack of food and water and those who fall victim to disease are thrown overboard if dead or close to dying. Hundreds, if not more, have been arrested on false charges and it has been widely reported that Government officials have failed to intervene and reportedly also participated in these violent attacks against the Rohingya Muslims.

Non-International Armed Conflict (NIAC)

The Rohingya have been persecuted for decades. However, there has been a major escalation because of the scale of destruction and the involvement of a Rohingya militant group, the Arakan Rohingya Salvation Army (ARSA). Myanmar military has reported that 400 people have been killed and the vast majority of them are terrorists. UN officials have estimated the death toll at ‘around a thousand’.  The conflict prevalent in Myanmar can be classified as a non-international armed conflict.

The criterion of an armed conflict is best extrapolated from state practice and the jurisprudence of international tribunals. It was elucidated in the seminal case of Tadic[6] that the existence of an armed conflict is determined with reference to two primary factors:

       a. The intensity of the hostilities between the State and armed groups

According to the jurisprudence of the international tribunals, the intensity of the hostilities and the level of organization of the armed group can be indicated by multiple non-exhaustive and non-cumulative factors. The intensity of hostilities is normally determined by the seriousness of the attacks and whether there has been an increase in armed clashes; the spread of clashes over the territory over a period of time, the number of civilians forced to flee from combat zones, and the continuous character of a terrorist campaign may also be considered in order to assess the gravity of the conflict. In light of the mass killings, beheadings, the large exodus of people and the continuous character of this violence, it can be said that the country has reached the required level of intensity to constitute an armed conflict.

        b. The level of organization of the armed group

Factors which determine the level of organization of armed groups include the existence of a command structure; the ability to undertake organized military operations; a certain level of logistics; a certain level of disciplinary enforcement and the ability to speak with one voice. These factors are not exhaustive nor cumulative. ARSA operates in Rakhine State in Northern Myanmar has killed more than 20 police officers and members of the security forces. On August 25th, 2017, it attacked 30 police posts in Rakhine state killing 12 people its biggest attack so far, which prompted a counter-insurgency attack from the security forces. Burmese government declared ARSA a terrorist organization and has stated that its members have trained abroad. ARSA’s spokesperson has said that it has no ties with jihadist organizations and only exists to support the fight for Rohingya people to be recognized as an ethnic group. These organized attacks demonstrate the existence of a command structure and their ability to undertake organized military operations. The attacks also illustrate a certain level of disciplinary enforcement.

International Crimes

In light of the above facts and context, the following international crimes are being committed by the Burmese forces against the Rohingya Muslims:

a. Crime of Genocide

Myanmar signed (30.12.1949) and ratified (14.03.1956), with reservations, the Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948.

Under international law it is the responsibility of every state to prevent, punish and refrain from Genocide. Genocide, as declared by UN General Assembly Resolution 96(1) is, ‘a denial of the right of existence of entire human groups’. The Resolution “affirms that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices – whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds – are punishable. The seriousness of the crime of Genocide is underlined by the fact that it has attained the status of an erga omnes obligation upon the states.[7]

Genocide does not explicitly include any objective requirements of scale. The gravity of genocide is marked not by an objective circumstantial element but by the subjective ‘mens rea’, the intent to destroy a national, ethnic, racial or religious group as such. For the crime of genocide to be committed, two elements are required, namely, the mens rea, the requisite specific intent, and the actus reus, the prohibited act or omission.

 

Actus Reus

The act of genocide for the purposes of Article 2 of the Genocide Convention is understood as such once any one of the acts mentioned in Article 2(2)(a) through 2(2)(e) is committed with the specific intent to destroy “in whole or in part” a national, ethnic, racial or religious group. The Rohingya constitute an ethnic group based on a distinct dialect and since they are Muslims, they constitute a religious group as well. Thus, it can be said that they meet the criterion for an ethnic and/or religious group under Article 2 of the Genocide Convention. The atrocities committed against this ethnic and religious group constitute the crime of genocide in the three forms stipulated in Articles 2 (2):

(a) killing members of the group,

(b) causing serious bodily or mental harm to members of the group,

(c) the deliberate infliction on the group of conditions of life calculated to bring about its physical destruction in whole or in part

Furthermore, as elucidated in the case of Akayesu (1998) by the International Criminal Tribunal for Rwanda (ICTR) the crime of genocide does not imply the actual extermination of the group in its entirety.

Mens Rea

The special intent in the crime of genocide lies in “the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” The atrocities that are being committed against the Rohingya are on a wide scale and these people are being specifically targeted on account of their membership of a particular ethnic group. Therefore, it can be said that in light of the ratio in the seminal judgement of Akayesu, genocidal intent can be inferred from the acts being committed against the Rohingya by the Burmese forces.

b. Crimes Against Humanity

Crimes against humanity, as per the International Criminal Court’s (ICC) jurisprudence, contains the following constituent elements:

  1. Existence of an attack directed against any civilian population pursuant to or in furtherance of a State or Organizational policy;
  2. Widespread or systematic nature of the attack;
  3. Acts committed as “part of” the attack (the nexus);
  4. Knowledge of the attack.[8]

In light of the atrocities committed against the Rohingya Muslims by the Burmese forces, in furtherance of the State or Organizational policy, five kinds of crimes against humanity may be established, namely:

(a) Murder

The ICTR Trial Chamber in Akayesu’s case defined murder as the “unlawful, intentional killing of a human being”.[9]

(b) Deportation or forcible transfer of population

Under Article 7(2)(d) of the Statute of the ICC (Rome Statute): ‘“Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.’

(c) Torture

Under Article 7(2)(e) of the Rome Statute: “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.

(d) Rape or any other form of sexual violence of comparable gravity

ICTR defined rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. Sexual violence which includes rape, is considered to be any act of a sexual nature which is committed on a person under circumstances which are coercive.[10]

(e) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

The ICTR noted that crimes against humanity have been defined as including inhumane acts other than those stipulated in its Statute. Therefore, it held that any act which is inhumane in nature and character may constitute a crime against humanity, provided the other elements are met.[11]

c. War Crimes

Under Rule 156 of the Customary International Humanitarian Law (a study compiled by the ICRC), serious violations of IHL constitute war crimes. Moreover, only those acts constitute war crimes which are ‘closely related to the hostilities’, i.e. in pursuance of the purposes of war/armed conflict. In the case at hand, a NIAC may be deemed to exist and as enumerated under the Rome Statute, the following provisions are applicable:

  1. Violence to life and person, in particular murder of all kinds, cruel treatment and torture;
  2. Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
  3. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
  4. Committing rape, as defined in article 7(2)(f) of the Rome Statute, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions.

Although Myanmar is not party to the Rome Statute, however, it is party to the Geneva Conventions of 1949 (ratified 25.08.1992). Within the Rome Statute, the first two offences listed above are categorized as serious violations of common Article 3 of the Geneva Conventions of 1949, while the latter two are categorized as “serious violations of the laws and customs of war applicable in an armed conflict not of an international character.” Moreover, all of the above-mentioned acts are violations of CIHL, as established between and by States, and codified under the Hague Conventions of 1899 and 1907, as well the Geneva Conventions of 1949 and their two Additional Protocols of 1977.

Use of Indiscriminate Weapons

Recent reports, citing government sources, allege that Myanmar has been laying landmines across a section of their border with Bangladesh. Such an exercise is aimed at preventing the Rohingya refugees from returning to Myanmar. Reportedly, Bangladesh is set to launch a formal protest against the laying of landmines along its border.

Landmines, whether anti-personnel or anti-vehicle, are indiscriminate in their very nature, and are thus violative of the core principles of International Humanitarian Law. Their indiscriminate nature led to the drafting and wide acceptance of the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 1997. To date, the Convention, also known as the Ottawa treaty, has 162 State parties. Although Myanmar is not party to the Ottawa Treaty, it is bound to adhere to the fundamental principles of customary international humanitarian law, in this case the principle of distinction. Moreover, the wide acceptance of the treaty is indicative of strong State practice and the underlying gravity of the issue as landmines can explode at any time for as long as they are deployed, regardless of the cessation of hostilities.

Legal Safeguards for Refugees

International refugee law holds a crucial position within the tenets of international law as it is interpreted and applied so frequently. It primarily consists of the Refugee Convention 1951 and the 1967 Protocol Relating to the Status of Refugees. The Refugee Convention defines the term ‘refugee’, outlines the rights of the displaced and the legal obligations of the state to protect them. A refugee under the Convention is a person who is outside the country of his nationality, owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and is consequently unable or unwilling to avail himself of the protection of that country. Furthermore, the cornerstone of the 1951 Convention is the principle of non-refoulement contained in Article 33. This principle states that a refugee should not be returned to a country where he or she faces serious threats to his or her life or freedom. It is also considered a non-violable part of international customary law. The principle of non-refoulement applies not only to recognized refugees, but it also applies to those whose status has not been formally declared.[12] In addition to the principle of non-refoulement, it can be said that the remaining principles contained within the Refugee Convention and the 1967 Protocol also constitute customary international law because they contain ‘reference points for determining customary international law’ and ‘reflect an international consensus on minimum legal standards to be applied to nationality.’[13]

Bangladesh and India are not parties to the Refugee Convention or 1967 Protocol. However, due to the wide scale of atrocities being committed against the Rohingya, it can be asserted that Rohingya Muslims have a well-founded fear of persecution. Thus, to return or expel them would constitute a violation of international law. It is also crucial to note that Bangladesh and India are both party to the International Covenant on Civil and Political Rights (ICCPR). Obligations laid down under the ICCPR also include the obligation not to extradite, deport, expel or otherwise remove a person from their territory where there are substantial grounds for believing that there is a real risk of irreparable harm, such as those falling within the ambit of Article 6 [right to life] and 7 [right to be free from torture or other cruel, inhuman or degrading treatment or punishment], as per the interpretation of the UN Human Rights Committee.[14] Furthermore, Article 3 of the Convention Against Torture (CAT) states that, “No State Party shall expel, return (“refouler”), or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Bangladesh is a party to CAT. Additionally, Article 14 (1) of the Universal Declaration of Human Rights, states that ‘everyone has the right to seek and enjoy in other countries asylum from persecution.’ Thus, in light of the above, it is evident that India and Bangladesh would stand in violation of their obligations under international law if they were to return Rohingya Muslims.

In the context of an obligation upon Bangladesh to refugees, the international refugee protection framework does not contain sufficient State practice or opinio juris to demonstrate a duty upon States to grant asylum to those seeking it under customary international law. Regardless of this, the comity of nations can accept refugees by employing a burden sharing mechanism. Thus, it is not necessary that the receiving State has to accommodate Rohingya Muslim refugees for an indefinite period. However, it is clear that to return them to Myanmar in the current situation or actively seek to prevent their entry would constitute a violate of the principle of non-refoulement.

Arbitrary Deprivation of Nationality

Under the Burma Citizenship Act, 1982, the native Rohingya Muslims were deprived of their nationality, effectively making them stateless. The Convention relating to the Status of Stateless Persons, 1954 and the Convention on the Reduction of Statelessness, 1961 were drafted with the aim of ensuring certain protections for stateless persons, while reducing and eliminating statelessness. The 1954 Convention under Article 1(1) defines a stateless person as one “who is not considered as a national by any State under the operation of its law.” This provision has acquired customary status over time. However, it important to note that Myanmar is not party to either of these conventions.

Be that as it may, the right to nationality was first recognized under Article 15 of the Universal Declaration of Human Rights, 1948. The provision also creates a prohibition on arbitrary deprivation of nationality. Since then, multiple international instruments have codified this right in various respects, such as the International Convention on Civil and Political Rights, 1966 and Convention on the Elimination of All Forms of Discrimination against Women, 1979. Similarly, the Convention on the Rights of the Child, 1989 to which Myanmar is party, provides that a child shall have the right to acquire nationality. In recognition of these developments, multiple UN Human Rights Council resolutions consider the right to nationality as a fundamental human right.[15]

Statelessness raises grave concerns as it deprives persons of their human rights such as right to education, healthcare, employment etc. The Burmese Act of 1982, is arbitrary and garnered towards the persecution of a minority group in that State.

3. International Law Responses

In light of the above discussion, RSIL has explored some of the responses that can be initiated by the United Nations and the role of its different organs to help bring the crisis in Myanmar to an end.

a. Role of the United Nations Secretary General

Under Article 99 of the Charter the Secretary-General is empowered to bring a matter to the attention of the Security Council which he opines to be threatening the maintenance of international peace and security. The Secretary General has to uphold the values and moral authority of the United Nations and stand up for peace even if it challenges some Member States. The good-offices (services rendered by a mediator) of the Secretary-General has been relied upon numerous times to prevent or even end conflicts that threaten peace between and within nations. The Secretary-General can use his good offices to mediate dialogue between the Myanmar government and Rohingya population and help them reach a peaceful solution. Currently, the UN Secretary-General Antonio Guterres, has urged the Myanmar government to refrain from the violence and to implement the recommendations of the Advisory Commission on Rakhine. He called for an immediate action plan to address the cause of the violence. The Secretary-General can take a more hands-on approach in trying to end the atrocities; however, that would require the Myanmar government to be willing and open to negotiations and mediation.

b. Role of the United Nations General Assembly

The policymaking and representative organ of the UN, the General Assembly (UNGA), has the power, under Article 14 of the UN Charter, to recommend measures for the peaceful adjustment of any situation that might impair the general welfare among nations including situations resulting from a violation of the provisions of the UN Charter. Furthermore, under Article 11 of the Charter it is empowered to make recommendations on the general principles of cooperation for maintaining international peace and security, including disarmament.

Due to the gravity of the situation in Myanmar, the UN Peacebuilding Commission (PBC) established under the UNGA Resolution 60/180 and UNSC Resolution 1645(2005), should consider including Myanmar into the list of current countries on its agenda. The PBC is an intergovernmental advisory body mandated to support peace efforts in conflict affected countries.

c. Role of the United Nations Security Council
i. Diplomatic Action under Chapter VI of the UN Charter

The Security Council has the main responsibility under Chapter VI of the United Nations Charter for the maintenance of international peace and security. As per Article 36 of the Charter, at any stage of a dispute, the Security Council can recommend to the parties, appropriate procedures or methods of settlement of their dispute, which may include mediation. In accordance with Article 37 and 38 of the Charter, the Security Council can also recommend the terms of settlement to the parties if it is requested or if the Council considers that the continuance of the dispute is likely to endanger the maintenance of international peace and security. Moreover, the Security Council also has the power to establish subsidiary organs to promote the peaceful settlement of international disputes (Article 29).

As the conflict in Myanmar has escalated in force and severity the UN Security Council should engage in diplomatic action to bring the parties to a negotiated agreement. The UNSC should set forth the principles for such an agreement and dispatch a mission to undertake investigation and aid the mediation.

ii. Peace Operations/Measures under Chapter VII of the UN Charter

Chapter VII of the Charter provides the framework within which the Security Council may take enforcement action. It allows the Council to “determine the existence of any threat to the peace, breach of the peace, or act of aggression” and to make recommendations or to resort to non-military and military action to “maintain or restore international peace and security”. Chapter VII missions do not require the consent of the belligerent parties and can use force for purposes that go beyond self-defense.

While operating under Chapter VII of the UN Charter, the UN Security Council should establish peacekeeping operations. Peacekeeping operations are implemented at different stages of a conflict. Phases for peace operations include the pre-conflict phase, conflict phase, and the ceasefire or post-hostilities phase. What is required at this stage of the conflict are peacemaking and peace enforcing operations. Peacemaking efforts that focus on establishing a ceasefire by using military and diplomatic efforts should be initiated. Moreover, the UNSC should also militarily restore international peace and security through peace enforcement measures which can include ‘the enforcement of sanctions and exclusion zones, protection of personnel conducting foreign humanitarian assistance (FHA) missions, restoration of order, and forcible separation of belligerent parties or parties to a dispute.’[16]

Once a ceasefire is established, the UNSC can focus its efforts on peacekeeping and peacebuilding. Peacekeeping measures at this stage involve a military initiative aimed at observing ceasefires or separating belligerent forces. Peacekeeping operations have to possess three fundamental characteristics namely consent, impartiality and restraint in the use of force. These operations can be distinguished from peace enforcement measures as they are conducted with the consent of the host nation.

Lastly, once a ceasefire is established, the UNSC can also engage in peacebuilding measures with the aim of preventing relapse into conflict. These measures include diplomatic, economic, legal and security related support to rebuild and strengthen governance institutions and infrastructure.[17]

Furthermore, the UNSC while functioning under Chapter VII of the UN Charter can also rely on two judicial counter measures against Myanmar; firstly, by invoking the jurisdiction of the ICC and secondly by establishing an international tribunal to address the crimes.

iii. Invoking Jurisdiction of the ICC

The case of Myanmar can be referred to the ICC by the UN Security Council. The ICC was created, in part, to intervene in situations where countries themselves are unwilling or unable to investigate or prosecute those carrying out injustice.

Any UNSC member acting under Chapter VII of the UN Charter may support a draft resolution to refer a situation to the Prosecutor of the ICC. Nine votes are required to adopt a resolution but any permanent member may exercise a veto (or abstain).

If jurisdiction of the ICC is triggered through the Security Council, even countries that are not party to the Rome Statute (such as Myanmar) are bound to cooperate with the ICC investigation. Therefore, if the Security Council adopts a resolution under Chapter VII of the UN Charter, all member states have to cooperate with the investigation under customary international law.

iv. International Tribunal to address cases of crimes against humanity and genocide

Myanmar has ratified the Geneva Conventions on International Humanitarian Law and the Genocide Convention in 1992 and 1956 respectively. Under these Conventions, Myanmar has pledged to investigate and prosecute heinous crimes. However, it has reserved its consent to the Security Council’s involvement in cases involving IHL treaty violations whereby:

Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any other acts enumerated in Article III.

This can be countered through Article 6 of the Genocide Convention through which an international tribunal can be established to prosecute international offences. These tribunals can be set up by the Security Council acting under Chapter VII of the United Nations Charter as an exceptional measure to restore peace and security in the affected regions.

Furthermore, the UNSC under Article 41 of the United Nations Charter can also impose economic sanctions, arms embargoes, financial penalties and travel bans on the government of Myanmar and sever diplomatic relations till it puts an end to the hostility.

d. Jurisdiction of the ICJ
i. Option One

Article 36 of the Statute of the International Court of Justice establishes the jurisdictional rules for bringing a contentious case before the ICJ. Myanmar however has not consented to the compulsory jurisdiction of the ICJ under Article 36(2) which reads as under:

The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:

  1. the interpretation of a treaty;
  2. any question of international law;
  3. the existence of any fact which, if established, would constitute a breach of an international obligation;
  4. the nature or extent of the reparation to be made for the breach of an international obligation

However, Myanmar is a party to the UN Convention on the Prevention and Punishment of the Crime of Genocide whereby a matter can be taken to the ICJ under Article 9. Although Myanmar has signed a reservation with regard to the jurisdiction of foreign courts and tribunals over cases of genocide, this has been done so with reference to Article 6 of the Genocide Convention which states that

Persons charged with genocide or any of the other acts enumerated in Article 3 shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction

Article 9 on the other hand gives jurisdiction to the ICJ for disputes between contracting parties relating to the ‘interpretation, application or fulfilment’ of the convention ‘including those relating to the responsibility of a State for genocide.’ Myanmar has not signed a reservation or declaration against Article 9 thus when read with Article 36(1)[18] of the Statute of the International Court of Justice, Myanmar could potentially be taken to the ICJ by another contracting party for the fulfillment of the Genocide Convention.

ii. Option Two:

The Advisory jurisdiction of the ICJ could also be invoked under Article 96[19] of the UN Charter and Article 65[20] of the Statute of the ICJ. The UN General Assembly and Security Council, along with other UN agencies and organizations, may request an advisory opinion on a legal issue arising from the hostilities in Myanmar. The Opinion however will not be legally binding.

 

[1] Advisory Commission on Rakhine State, “Towards a Peaceful, Fair and Prosperous Future for the People of Rakhine” (August 2017)

http://www.rakhinecommission.org/app/uploads/2017/08/FinalReport_Eng.pdf

[2] Tasnima Uddin, “What created the blueprint for Rohingya genocide in Myanmar? Western colonialism” Independent (6th September 2017)

The Burma Citizenship Law 1982, Section 2(e) defines “Foreigner” as a person who is not a citizen, associate citizen or a naturalized citizen

[3] The Burma Citizenship Law 1982, Section 44

[4] Advisory Commission on Rakhine State, 30

[5] Advisory Commission on Rakhine State, 30

[6] The Prosecutor v Dusko Tadic, ICTY, IT-94-1-T, 1997, para. 562

[7] Case Concerning Armed Activities on the Territory of Congo (New Application: 2002) (Democratic Republic of Congo v Rwanda), ICJ Reports, 3 February 2006, Para. 64

[8] The Prosecutor v Jean-Pierre Bemba Gombo, ICC Trial Judgment, 21 March 2016, ICC-01/05-01/08, pp. 71-79

[9] The Prosecutor v Jean-Paul Akayesu, Case No. ICTR-96-4-T (Trial Judgement) [1998] ICTR, para. 589

[10] The Prosecutor v Jean-Paul Akayesu, Case No. ICTR-96-4-T (Trial Judgement) [1998] ICTR, para. 598

[11] The Prosecutor v Jean-Paul Akayesu, Case No. ICTR-96-4-T (Trial Judgement) [1998] ICTR, para. 585

[12] Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol

[13] T Einarsen, The 1951 Convention, in Aimmerman (ed.), The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary (Oxford: Oxford University Press, 2011

[14] Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol 9

[15] See, e.g., UNHRC Resolutions: ‘Resolution 7/10: Human Rights and Arbitrary Deprivation of Nationality’, UN doc A/HRC/RES/7/10, 27 Mar 2008; ‘Resolution 10/13: Human Rights and Arbitrary Deprivation of Nationality’, UN doc A/HRC/RES/10/13, 26 Mar 2009; ‘Resolution 13/2: Human Rights and Arbitrary Deprivation of Nationality’, UN doc A/HRC/RES/13/2, 24 Mar 2010; ‘Resolution 20/5: Human Rights and Arbitrary Deprivation of Nationality’, UN doc A/HRC/RES/20/5, 16 July 2012. See also UNHRC, ‘Human Rights and Arbitrary Deprivation of Nationality: Report of the Secretary-General’, UN doc A/HRC/25/28, 19 Dec 2013.

[16] United States Joint Chiefs of Staff, 2007. Peace Operations. Joint Publication 3-07.3., 17th October, 2007, Ch. 1, p. 8-9

[17] United States Joint Chiefs of Staff, 2007. Peace Operations. Joint Publication 3-07.3., 17th October, 2007 Ch.1 p.9

[18] Statute of the ICJ, Article 36(1):

The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force

[19] Charter of the United Nations, Article 96:

1. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.

2. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.

[20] Statute of the ICJ, Article 65(1):

The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.