Field-Work Based Research And Legal Analyses On Persecuted Rohingya: Applicable International Laws
Persecuted Rohingya have got their shelters in Bangladesh. They are huge in numbers and it is not the first time that they have been here. Persecution is also not a thing that the Rohingya have experienced for the first. It seems that they are, unfortunately, always to experience the conflicts, post conflicts and transitional situations. In order to get their first-hand experience, knowledge and information on those situations, an effort has been made by this author by arranging interviews with the persecuted Rohingya- victims and witnesses in the southern part of Bangladesh where they have got refuge. An attempt has, further, been made to research, analyze and assess the accounts of the interviewees in the light of the international humanitarian law, international human rights law and international criminal law. Some ideas and recommendations have been suggested by this study to make the perpetrators accountable.
- It was the demand of the time that the new government of Myanmar would allow its subjects to exercise their democratic rights. Myanmar along with other stakeholders to SDGs was supposed to bring reforms in all institution-levels ensuring that a reformed legislature of Myanmar amends the existing suppressive laws including the 1982 Citizenship Law giving Rohingya the rights of citizenship and a reformed independent judiciary strikes down the legislative and executive actions against the subjects on the humanitarian grounds. And this was how confidence could have been brought to the mind of the people including the Rohingya that they had shelters to recourse to redress any social injustice. And this was how the dreams of the framers of the UN Charter and UDHR would come true. However, the reality is different. I would make an effort to let you know the experience and first-hand knowledge gathered in The Rakhine State by some persecuted victims and witnesses and then I would assess those in the light of the applicable international laws. And before that, the background of the social injustices and the relevant antecedents need to be focused.
- In order to maintain the high standard in obtaining information, UN documents, for example; commissions of inquiry and fact-finding missions on international law, guidance and practice 2015  and the best practices and standards recommended by the Informal Working Group of the Security Council on General Issues of Sanctions in its 2006 report (S/2006/997) have been consulted.
- Open-ending questions [Non-leading] have been asked during the interviews and proper care has been paid at the time of questions relating to the sexually based crimes. In relation to the sexual crimes a conviction can be based on a piece of single evidence without corroboration by any further independence evidence under the common law jurisdiction and ICC system if the evidence is reliable without compromising the standard of proof (beyond a reasonable doubt). However, in this particular study, corroboration by three further independent evidence has been set to comply.
- Of approximately 120 interviews arranged in different locations of the southern part of Bangladesh 70 were conducted in the period between January 2014 and December 2016 and 50 in between January 2017 and October 2018 and all of those have been cumulated for this particular study.
- Testimonies of the victims and witnesses gained from the first-hand experiences in relation to the crimes committed since 9 October 2016 have been assessed in light of the genocide, crimes against humanity and war crimes. And crimes committed before that date have been assessed in light of the genocide and crimes against humanity only; because military activities, organizational structure and discipline of ARSA [Arakan Rohingya Salvation Army] were not known until 9 October 2016 and their existence brought war crimes in operation (Non-international armed conflict).
- It has been observed during the interviews that interviewees, not to my surprise, were not willing to give their true identity and details lest they suffer further reprisals and persecution. They did not consent to the audio and video recording of the interviews. For sure, their testimonies would not be any good for trial and judicial purposes. However, their testimonies would satisfy a reasonable person (objective test) to the effect that serious crimes have been committed and that is why the situations warrant proper investigation and prosecution by the competent authority to combat impunity.
- This author has used pseudonyms for the names of those who have been interviewed and used, during the interview, the local language of Chittagong which was mostly known both to the interviewer and interviewees.
- All those interviewed were informed of the purpose of the activity that the contents would not be used for any investigation, trial or prosecution purposes but only to let the world- community know of the real fact. They have been assured that they would not be further contacted. And being so informed they orally consented and voluntarily participated.
C. Background and Major Antecedents
- Before 1942 there were two major ethnic communities in Arakan; the Rohingya, who had formed the majority population in Arakan, were the believers in the religion of Islam and the Maghs (Rakhaings) were the minority Buddhists. During the 1942 anti- Muslim riotings the Muslims of southern Arakan had been pushed to the north where the Buddhist had taken over the southern half of the country where they, then, had formed the majority. The term Rohingya is derived from the words Rohai, and Roshangee, a terminology perverted to Rohingya .
- The Rohingya trace their origins in the region to the fifteen century, when thousands of Muslims came to the former Arakan Kingdom. Many others arrived during the nineteen and early twentieth centuries when Rakhaine was governed by colonial rule as part of British India. Since independence in 1948, successive governments in Burma, renamed Myanmar in 1989, have refuted the Rohingya’s historical claims and denied the group recognition as one of the country’s 135 official ethnic groups. The Rohingya are considered illegal immigrants from Bangladesh, even though many trace their roots in Myanmar back centuries 
- In 1974 the Ne Win government had introduced a new constitution granting Rakhine (Arakan) division a state- status and subsequently in 1989 the name of Arakan was changed to Rakhine by the military junta. Under Ne Win’s 1977 Operation Dragon King, identity cards were issued to all authorized residents of Burma, each prominently displaying their ethnic identity and colour- coded to indicate their position within a three-tiered citizenship system. In 1982 the exclusion of Rohingya from the citizenship was made official, with a revision of the Myanmar Citizenship Law that excluded them from the list of 135 ethnicities.
- Massacres including murder, rape and displacements took place between June and October 2012 participation of security forces against Rohingya .
- Violent attacks by insurgents against border guard posts on October 9, 2016, in Maungdaw, northern Rakhine State, resulted in the deaths of nine officials and sparked the most serious humanitarian and human rights crisis in Rakhine State since the October 2012 “ethnic cleansing” campaign against the Rohingya .
- On August 25, 2017, in response to coordinated attacks on security force outposts northern Rakhine State by militants from the Arakan Rohingya Salvation Army (ARSA), security forces launched a large-scale military operation against the Rohingya Muslim population 
D. Testimonies of Rohingya victims and witnesses
- Since 1970s Myanmar army has been carrying out crimes on Rohingya and during that period they have been victims of rape, sexual slavery, inhuman torture, murder, arson and discrimination. Until recently more than 700000 Rohingya have been able to flee their homeland to Bangladesh to escape persecution. And they have got their shelters here.
- Fatima Begum was really tired and exhausted. She was 20 and held alone by a tree. She was from Tami village.” I was captured in a room for 7 days where Myanmar soldiers raped me on a regular basis. I was not alone- 15 in total – she said. The killed my husband and son in front of me. They burnt my home and forcefully took me to a small dark room where I found Khadeja , Rahima  who were there for 10 days. I knew them from before; because they are my cousins. It was noon when I was taken to that dark room. I made resistance when soldiers, for the first time, came to rape me and they cut my finger off with a sharp blade. I never made any resistance since then- she said wiping tears from her eyes. Her finger-cut  was covered with a piece of clothes. Khadeja, Rahima and I escaped the place when the soldiers went somewhere for operation leaving the door of our room open- she added.”
- A middle-aged man was eating a loaf sitting on his belongings. He was waiting for his family members who went somewhere to collect drinking water. To a question, he said “ My name is Karim and I am 55. My family members and I just arrived today after a long walk. On our way to Bangladesh, we found a group of 30-35 men, women and children and we all are from the Tami Village. Buddhists and Myanmar soldiers, after the incident of 25 August 2017, burnt our houses. They do not want to see us there even though our forefathers were there. We do not know why Allah made us as Rohingya and placed there. They made us stateless. We do not have the nationality and they do not recognize Rohingya as nationals”. He was looking around him and expecting his other family members who went for water. He said his father, Nyamot, son Khalil and wife Nur Banu would be here soon with water .
- “After the incident of August 25, in one morning Myanmar soldiers came to our house. I thought that they were looking for the members of ARSA and said to them there was no ARSA in this house. Without giving any time, one soldier came and snatched my son from me and amputated his head from the body and they set fire in my home. I tried to run but could not as I was ill. I heard hue and cry everywhere and the surroundings were full of smokes of burning fire. They just ignored me and rushed to the next house for burning”- it was the narration of Lotifa, a 50-year-old woman came today from Tami village .
E. Analyses and Findings
- Myanmar did not ratify yet important human rights instruments. However, They have already ratified the following, among other, instruments: International Covenant on Economic, Social and Cultural Rights, convention on the prevention and punishment of the crime of genocide, Geneva convention for the amelioration of the condition of the wounded and sick in armed forces in the field, Geneva convention for the amelioration of the condition of the wounded and sick and shipwrecked members of armed forces at sea. They did not ratify yet, among other, the covenant on civil and political rights, the Rome Statute of ICC, Geneva Convention relative to the protection of civilian persons in time of war. And they did not ratify the protocol I and II additional to the Geneva conventions of 12 August 1949.
- In spite of the fact that Myanmar did not ratify the Rome Statute, it is still possible, by virtue of art.13(b) of the Rome Statute , to bring the situations of Myanmar into the ICC if the Security Council is pleased to refer excusing chapter 7 of the UN Charter. And if the situation is referred to the jurisdiction of the ICC, then the court can disregard the fact of ratification of a particular human rights instrument, bring customary international law in operation under art.21 of the Rome Statute .
- The Rome Statute of the ICC  came in force in 2002 conceiving the jurisprudence of earlier ad hoc tribunals. It is the instrument in international law that included an expansive list of certain crimes including sexual and gender-based crimes as crimes against humanity (Art.7), genocide (art. 6) and war crimes (Art 8) both in international and non-international armed conflicts. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and other forms of sexual violence have been criminalized as crimes against humanity and war crimes. Furthermore, hiring the jurisprudence of Akayesu judgment (ICTR), the Rome Statute incorporated the spirit that sexual violence committed with an intent to destroy, in whole or in part, a national, ethnic, racial or religious group, may constitute acts of genocide (art.6).
- As defined in the North Sea Continental Shelf Case , customary law has two essential components: uniform and consistent state practice and evidence of opinio juris. State practice requires that the state consent to the rule in question by engaging in “constant and uniform” behaviour, while opinio juris requires that states have acted out of a sense of legal obligation.
- The attainment of certain crimes as a peremptory norm in international law does make the mechanisms or peace-brokers legally instrumental to pull a concrete finding in a given situation; because it is immaterial then whether or not a particular State has ratified a particular legal instrument. The concepts of jus cogens and erga omnes  are closely related and it is difficult to draw a difference between them. The former creates the latter erga omnes obligations for the states to comply and if this analysis is right it necessary follows that an erga omnes obligation is the consequence of a rule being characterized as jus cogens.
- I would like to mention here some cases where ICJ and other international courts decided erga omnes obligations. For example, in Barcelona Traction case  the ICJ enumerated four erga omnes obligations; the outlawing of acts of aggression, the outlawing of genocide, protection from slavery, and protection from racial discrimination. Subsequently, obligations to respect the principles of self-determination and obligations prohibiting the use of torture were recognized as erga omnes obligations by the courts in East Timor  and Furundzija case  respectively. Erga omnes obligations of the States derived from the jus cogens status in relation to certain violations mentioned above and the sincerity of States to those obligations could combat the impunity.
- Analyzing and assessing the testimonies of the victims and witnesses a reasonable person would reach to a finding that certain crimes mentioned above may have been committed under the international criminal law and there may have been a serious violation of international humanitarian law and international human rights law. The situation warrants further investigation and prosecution to combat impunity.
- It is the demand of the time that perpetrators should be brought to the law making them accountable, and the mouth of impunity should be closed. Keeping the facts in mind that Myanmar did not ratify the Rome Statute and the fact that under art. 13(b) of the statute Security Council can refer a situation to the ICC, and a further a fact that Myanmar is also a stakeholder to the SDGs, the following recommendations can be advocated:
- The matter can be referred to the ICC by the Security Council. Or
- Security Council can create an ad hoc tribunal. Or
- Bangladesh-Model can be hired by Myanmar by incorporating crimes of Rome statute into their domestic law. And in such a case stakeholders to the SDGs can play an important role; because under Goal 17 of the SDGs, the Stakeholders would work in partnership for the goals and according to Goal 16, they are to promote peaceful and inclusive societies for sustainable development and provide access to justice for all and build effective, accountable and inclusive institutions at all levels.
- Commissions of Inquiry and Fact-finding Missions on international human rights and humanitarian law,(https://www.ohchr.org/Documents/Publications/CoI_Guidance_and_Practice.pdf)
- Letter dated 18 December 2006 from the Chairman of the Informal Working Group of the Security Council on General Issues of Sanctions addressed to the President of the Security Council, [ http://undocs.org/S/2006/997]
- Birth of an ethnic insurgency in Myanmar, by Mike Winchester, August 28, 2017 [available at http://www.atimes.com/article/birth-ethnic-insurgency-myanmar/]
- MuhammadYunus,AhistoryofArakan(Past&Present). [www.netipr.org/policy/downloads/19940101-Dr-Yunus -History-Of—Arakan.pdf].
- The Rohingya Crisis, by Eleanor Albert and Andrew Chatzky [available at https://www.cfr.org/backgrounder/rohingya-crisis]
- The Government could have stopped this, 31 July 2012, Human Rights Watch [https://www.hrw.org/report/2012/07/31/government-could-have-stopped/sectarian-violence-and-ensuing-abuses-burmas-arakan]
- World Report 2017, Human Rights Watch, [https://www.hrw.org/world-report/2017/country-chapters/Burma]
- World Report 2018, Human Rights Watch, [https://www.hrw.org/world-report/2018/country-chapters/Burma]
- Khadeja was not present when Fatima was interviewed. Khadeja was interviewed separately and she corroborated the testimony of Fatima.
- Rahima was interviewed separately and she was not present when Fatima was interviewed. She corroborated the testimony of Fatima.
- Finger-cut itself could be an independent corroboration of the testimony of the victim. However, without a forensic examination it was difficult to reach a firmed decision to this effect. This study lacks the opinion of a forensic expert.
- Father Nyamot,70, son Khalil 25 and wife Nur Banu 45 were interviewed separately and they corroborated the testimony of Karim. The 1982 citizenship law has further been consulted as a secondary source.
- I interviewed Nesar (19), Rasul (42) and Jibon( 48) who were the natives of Tami village and arrived Bangladesh escaping the persecution. They have been interviewed separately. The narration of Lotifa in respect of the burning of the village was corroborated.
- Article 13, Exercise of jurisdiction, The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.
- Article 21, Applicable law, 1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.
- Rome Statute of the International Criminal Court, [available at https://www.icc-cpi.int/nr/rdonlyres/add16852-aee9-4757-abe7-9cdc7cf02886/283503/romestatuteng1.pdf]
- North Sea Continental Shelf cases [available at https://www.icj-cij.org/files/case-related/52/5563.pdf]
- ICJCASE CONCERNING THE BARCELONA TRACTION, LIGHT AND POWER COMPANY, LIMITED (NEW APPLICATION : 1962) (BELGIUM v. SPAIN) SECOND PHASE JUDGMENT OF 5 FEBRUARY 1970, PARA 33 AND 34
- ICJ CASE CONCERNING EAST TIMOR (PORTUGAL v. AUSTRALIA) JUDGMENT OF 30 JUNE 1995.
- ICTY, Prosecutor v Furundzija, 1998, para 151.