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MYANMAR’S CITIZENSHIP LAW AS STATE CRIME: A CASE FOR THE INTERNATIONAL CRIMINAL COURT
By Ronan Lee, visiting scholar, Queen Mary University of London, International State Crime Initiative.
This article argues that Myanmar’s authorities subject the Rohingya to human rights violations that can be accurately described as the crime of apartheid. Myanmar’s discriminatory application of its citizenship laws and processes is central to this crime, yet while Myanmar is not a signatory to the Rome Statute of the International Criminal Court, the court’s jurisdiction remains limited. However, Myanmar’s government has brought this crime to the territory of International Criminal Court (ICC) member state Bangladesh.
Because Myanmar’s government insists upon Rohingya participation in discriminatory citizenship processes as a precondition of refugee repatriation to Myanmar, this presents the ICC with an opportunity to assert its jurisdiction. While current ICC investigation focusses mostly on alleged crimes committed by the Myanmar military, crimes associated with Myanmar’s citizenship processes would likely be the responsibility of Myanmar’s civilian government, including State Counsellor Aung San Suu Kyi, making Myanmar’s civilian political leaders liable for the first time to ICC prosecution.
The crimes considered in this article are among the most serious violations of international law – crimes against humanity – and many are currently the subject of extensive ICC investigation. The victims are among Myanmar’s Rohingya minority, while the alleged perpetrators are overwhelmingly to be found among the Myanmar military and government, the institutions that enabled and encouraged the criminality. If state crime as Green and Ward (2004: 2) suggest is, “state organisational deviance involving the violation of human rights”, then the overwhelming evidence indicates the Rohingya are victims of state crime by Myanmar’s authorities on an appalling scale.
The Rohingya have been persecuted by Myanmar’s authorities for decades, are today collectively denied citizenship rights, and are routinely subjected to restrictions on their freedom of movement, access to healthcare and education, livelihood opportunities, and on their ability to marry and have children. Amnesty International (AI) (2017) described the Rohingya’s long-term situation within Myanmar as apartheid, while researchers at the International State Crime Initiative (ISCI) explain how official mistreatment of the Rohingya amounts to genocide (Green, MacManus and de la Cour Venning 2015, 2018). Central to the Rohingya’s plight is their collective lack of Myanmar citizenship rights and consequent discrimination and rights restrictions associated with this.
During August 2017, Myanmar’s military, known as the Tatmadaw, launched a “clearance operation” in the country’s northern Rakhine state. With a pretext of seeking out members of a recently emerged Muslim militant group, the Tatmadaw indiscriminately brutalised civilian members of the Rohingya Muslim community in an operation characterised by war crimes, crimes against humanity, and genocidal intent (UN Human Rights Council 2018). The resultant forced migration, the largest in the region since the Second World War, caused more than 700,000 Rohingya to flee Myanmar for Bangladesh. This crackdown, which included the razing of hundreds of Rohingya villages, was described by United Nation’s High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, as an “example of ethnic cleansing” (UN News 2017).
Appalling violence and discrimination by Myanmar’s government and military against the Rohingya is not new and has been a regular feature of Rohingya life in Myanmar for decades (Human Rights Watch 2012, 2013). However, the scale and brutality of the acts that contributed to the 2017 forced migration drew global attention to the Rohingya’s situation in Myanmar and led to calls for United Nations (UN) action to prevent further victimisation of Rohingya civilians (Human Rights Watch 2018; OHCHR 2017; Roth 2017). A UN Human Rights Council investigation into Myanmar during 2017 and 2018 outlined widespread human rights violations by the Tatmadaw against the Rohingya, and recommended, “investigation and prosecution of Myanmar’s Commander-in-Chief, Senior General Min Aung Hlaing, and his top military leaders for genocide, crimes against humanity and war crimes” (UN Human Rights Council 2018).
These calls for accountability and the prosecution of key Tatmadaw figures did not lead to action by the UN Security Council (UNSC) (Agence France-Presse 2017). Permanent UNSC members China and Russia continued to be steadfast protectors of Myanmar’s authorities despite mounting evidence of genocide, crimes against humanity, and war crimes being committed by the Tatmadaw with the approval of key civilian government leaders (Al Jazeera 2018; Reuters 2017; Safi 2017). The support of these two permanent UNSC members for Myanmar’s authorities was enough to prevent others on the council, such as the UK and US, from bringing to a council vote calls for UNSC action to prevent further atrocities in Myanmar, to hold perpetrators to account, or for a referral to the ICC (Human Rights Watch 2018; Nichols 2018).
However, despite UNSC inaction, calls for perpetrators to be held accountable for atrocity crimes were heeded by the Chief Prosecutor of the ICC, Fatou Bensouda. Without a referral from the UNSC and in light of Myanmar’s refusal to recognise ICC jurisdiction, the ICC Chief Prosecutor considered whether the crimes against the Rohingya, particularly their deportation to ICC member state Bangladesh might provide the court with jurisdiction to undertake prosecutions (ICC 2018a; Safi 2018).
