A years-long conflict in Myanmar, formerly known as Burma, has claimed the lives of thousands and gone largely unchecked by the international community. The Rohingya people, an ethnic minority group in Myanmar, are discriminated against by their own government and people. A predominant source of conflict between the Rohingya people and the country in which they reside is the religious differences the two possess. The Rohingya people are a Muslim minority in a predominantly Buddhist country, leading to conflict and violence between the two. The group, while a minority in Myanmar, comprise roughly 13 million people of the country’s nearly 57 million people; however, when compared ethnically, a stark contrast emerges with only 4.3% of the population claiming to be Muslim while an incomparable 87.9% of the population claim Buddhism as their practiced religion.
The violence came to a head in the summer of 2017 when Rohingya Arsa militants attacked a dozen Myanmar police posts. Following this, the Myanmar army indiscriminately barraged villages of Rohingya people across the country. The army repeatedly claimed the attacks were directed against Rohingya militants in the country; however, tens of thousands of Rohingya people were displaced, tortured, and killed in the so-called ‘targeted’ process. Atrocities committed against the population follow the standards of crimes against humanity, coined by the United Nations (UN), which include acts like murder, forcible transfer of population, torture, and sexual violence–all of which were inflicted upon the Rohingya people for years following 2017. In addition to the aforementioned afflictions, the UN states, “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law,” further indemnifying the actions of the Myanmar army against the Rohingya people.
As a result of the attacks, many Rohingya people fled their villages to neighboring Bangladesh and left the violence provided by the Myanmar military, prompting international intrigue. Bangladesh remained a safe place for the roughly one million Rohingya refugees, but the country stated in March 2019 that it was no longer going to accept Rohingya refugees from Myanmar. If the violence in Myanmar was not enough, the addition of international affairs through Bangladesh piqued the interest of the UN and its Human Rights Council, the UNHRC. The UNHRC is a panel of 47 representatives from across the world that investigates possible human rights abuses through war crimes and crimes against humanity. The aforementioned cases against the Myanmar army, including murder, forcible transfer of population, and other actions, qualify as both war crimes and crimes against humanity, which is why the UNHRC has taken a keen interest in the events of the region.
The UNHRC is a powerful subset of the UN and accompanies the likes of other judicial arms like the International Court of Justice (ICJ) and the International Criminal Court (ICC). In cases such as the Rohingya people against their own military, the UN can utilize their legal abilities to remedy the issues at hand, which, in this case, are the war crimes and crimes against humanity. The ICJ is at the forefront of judicial oversight into the case of the Rohingya people, using its authority to rectify the probable genocide in the Myanmar region. One important distinction of the ICJ when compared to the ICC is the fact that the ICJ can only prosecute states, not individuals. This is important to note, specifically in this case, because the country of Gambia brought Myanmar to trial on behalf of the Rohingya people; Gambia is a country in Western Africa that has no direct tie to Myanmar, an Asian country south of China. The circumstance of the situation is peculiar, but the ICJ accepted the case and added the dispute to its doc of litigious issues on grounds of potential genocide.
In addition to the formal subsets of the UN, through legal entities like the ICJ and the ICC, various non-state actors have a particular role in the violence spread across Myanmar. Non-state actors are invaluable means of regional expertise and capability, and they can be used by formal state actors, such as the UN, to mitigate the issues of a region. Non-state actors include entities like nongovernmental organizations (NGOs), transnational organizations (TANs), and multinational corporations (MNCs), to name a few. These organizations, because of their non-state status, are able to aid regions in more pertinent ways, as there are less regulations and diplomatic issues to hinder their efforts. Along with this, non-state actors are imperative to more localized efforts because of their abilities to garner knowledge and a familiarity with a specific region. Non-state actors are the informal hands that supplement the abilities of formal state actors, like the UN.
With the case in Myanmar, the Rohingya people have received non-state actor support through several NGOs, including organizations like Muslim Aid, Human Rights Watch, and Burma Task Force USA. These organizations work alongside the people of Myanmar to dismantle ethnic discrimination in the region and provide necessary aid to afflicted Rohingya people. These NGOs work directly with the Rohingya people to facilitate healthy environments and administer medical help to those in need and left out by the government. This situation is the norm for issues of this matter; non-state actors have a more pertinent impact on the affected population and are able to support the people caught in conflicts in a more timely and informal manner.
As of January 2020, the ICJ has issued that Myanmar must, “cease and desist all forms of alleged genocide against the Rohingya and to preserve evidence about alleged genocidal acts.” This statement from an official judicial body is a strong indication that the acts of Myanmar against the Rohingya people will be punished on an international scale, setting a precedent in the region. The precedent coming before this case of Gambia v Myanmar can be traced to the rulings during the UN Genocide Convention, a post WWII gathering of powers to condemn and legally prevent the events of future genocides. Article 1 of the Convention begins with the statement, “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish,” further justifying the actions of the ICJ against Myanmar.
As the ICJ and UN further deliberate the contingencies surrounding Gambia v Myanmar and the Rohingya people, nods to precedent through the UN Genocide Convention of 1948 and two notable ICC prosecutions will no doubt be at the forefront of justification for punitive measures. The two ICC prosecutions referred to are two separate trials stemming from genocidal cases from Bosnia and Yugoslavia in the 1990s and South Sudan in the early 2000s, both of which were formally recognized as cases of ethnic cleansing and had individual prosecutions for the main leaders involved in such atrocities. However, it is important to keep the distinction between the ICC and the ICJ clear; the ICC can prosecute only individuals whereas the ICJ can only prosecute states, hence the case being between two sovereign states, Gambia and Myanmar.
If Myanmar is found to be responsible for genocidal acts, the state will be prosecuted by the ICJ and a new level of precedent will be established. Recognition and continuity of ruling would be upheld from an international legal standpoint, as the initial piece of genocidal legislation stems from the UN Genocide Convention in 1948 that adds to the legitimacy of the ICJ and the UN as a whole. Moreover, the UNHRC would prove its worth to the affected state of Myanmar and the affected Rohingya people by giving punitive legal ramifications to those who inflicted crimes against humanity on them.
The international legal arena is looking to the ICJ and UN to provide a sound and consequential resolution to the atrocities committed against the Rohingya people over the past few years. Although deliberations and trial proceedings will likely last several years, the potential to bring Myanmar to justice is at the forefront of many minds. The continued legal precedent provided by the judicial arms of the UN, via the ICJ, allows for future conflicts to be deliberated on an international stage, removed from the horrors of the regions in which legislation grows. The ICJ is in a unique position, as it will be for the next while, because of its ability to use the international cacophony of state and non-state actors, aggressors, and affected populations to mold future litigation in many facets.