Statements

Official Statement: The Rohingyan Refugee Crisis

We, the United Kingdom and Eire Malaysian Law Students’ Union (KPUM) condemn the widespread and rampant violation of human rights of the Rohingya people in Myanmar which we believe amounts to a genocide as defined under customary international law such as the Convention on the Prevention and Punishment of the Crime of Genocide Convention (CPPCG) 1948 as well as the Rome Statute of the International Criminal Court.

 

 

Article 2 of the CPPCG defines genocide as:
…any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily harm, or harm to mental health, to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
A similar definition was adopted in the Rome Statute of the International Criminal Court.
There are three essential elements that form the crime of genocide:
1. the existence of a protected groups
2. the commission of one or more prohibited acts
3. and the required intent.
We understand and note that any allegation of genocide is a serious one and we seek to back our statement by attempting to look at the necessary elements that form the crime of genocide and to provide the necessary arguments for our claim.
1. Protected Group
 
In Prosecutor v Akayesu[1], the International Criminal Tribunal of Rwanda (ICTR) defined a national group as “a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties.”The test for determining that a “racial group” exists is a subjective one that considers the perpetrators’ perceptions of the victimized group. [2]

The definition of a racial group may also be similarly compared to the factors considered by the International Convention on the Elimination of All Forms of Racial Discrimination, which are “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin. [3]

The Rohingya people should qualify as a ‘protected group’ under Article 2 of the Convention.

The history of the Rohingya, going back as early as the ninth century and up to as recently as the mid-twentieth century, indicates that the group shares distinctive historical links and thus likely falls within the national group category of the Genocide Convention. Additionally, Rohingya share a distinctive language, Ruaingga, and may also form a ‘protected group’ on the basis of their religion as they are largely Muslim and have been frequently subjected to anti- Muslim sentiment by the Myanmar government and local Rakhine inhabitants.

2. “Acts”[4]

The Convention identifies the killing of members of the group as a prohibited genocidal act.

The tribunal in Prosecutor v Semanza[5] held that establishing criminal liability for genocide by the act of killing members of a group requires showing that “the perpetrator intentionally killed one or more members of the group without the necessity of premeditation; and such victim or victims belonged to the targeted ethnical, racial, national or religious group.”

State security forces’ involvement in massacres of Rohingya satisfies the requirements for finding the commission of the prohibited act of killing members of a protected group. Moreover, failure to stop, investigate, or punish local violence against Rohingya also violate the Convention.[6] In Prosecutor v Kambanda[7] and Prosecutor v Kovacevic and Drljaca[8], it was found that both acts and omissions can constitute grounds of responsibility for killing in violation of the Convention.

With regards to the second limb of prohibited acts under the Convention, the ICTR and International Criminal Tribunal of Yugoslavia (ICTY) have found a number of non-fatal acts, including torture, rape, deportation, and cruel treatment to fit within this category. [9]

Alongside the decades of violence against the Rohingya, it is reported that dozens of Rohingya Muslims have been killed since early October, when the army launched a crackdown after an attack killed nine police officers.[10] Further reports have alleged that hundreds of Rohingya have been detained by the military, more than 150,000 aid-reliant people have been left without food and medical care, dozens of women claim to have been sexually assaulted, more than 1,200 buildings appear to have been razed and at least 30,000 people have fled for their lives. [11] The purported attacks against Rohingya women conform to the ICTY and ICTR’s definitions of rape as an act “causing serious bodily or mental harm”.

Taken collectively, these alleged acts appear to satisfy a violation of Article II (a), (b), (c) and (d) of the Convention.

 
3. Required Intent

A finding of responsibility for genocide requires that the perpetrators must have performed one or more prohibited acts with an intent to destroy a group of people protected under the Convention.

In Akayesu, it was stated that a perpetrator’s intent could be imputed through an examination of the totality of circumstances surrounding the execution of prohibited acts.

In 2007 the European Court of Human Rights (ECHR), noted in its judgment on the Jorgic v. Germany case that the majority of legal scholars took the narrow view that “intent to destroy” in the CPPCG meant the ‘intended physical-biological destruction of the protected group’ and that this was still the majority opinion.

This view is supported by the judgments of the International Criminal Tribunal for the Former Yugoslavia and the International Court of Justice, both of which have agreed with the narrow interpretation.

The phrase “in whole or in part” has been subject to much discussion by scholars of international humanitarian law. The International Criminal Tribunal for the Former Yugoslavia found that “the part must be a substantial part of that group In Prosecutor v. Radislav Krstic – Appeals Chamber – Judgment – IT-98-33 (2004) ICTY 7 (19 April 2004)

Para 12:
The determination of when the targeted part is substantial enough to meet this requirement may involve a number of considerations. The numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry. The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4 [of the Tribunal’s Statute].”Para 13:
“The historical examples of genocide also suggest that the area of the perpetrators’ activity and control, as well as the possible extent of their reach, should be considered. … The intent to destroy formed by a perpetrator of genocide will always be limited by the opportunity presented to him. While this factor alone will not indicate whether the targeted group is substantial, it can—in combination with other factors—inform the analysis.”

A finding of intent is clear when viewed holistically as according to numerous human rights reports that have outlined the targeting of the Rohingya community.[12]
In some villages, assailants hacked dozens of children to death and threw their bodies into fires. [13] Moreover, dozens of deaths have resulted from avoidable deprivation of health care and humanitarian aid in IDP camps and in communities of non-displaced Rohingya.[14] Thousands more have died en route their journey fleeing Myanmar, both at sea and at the hands of transnational syndicates involved in human trafficking. [15]Ultimately, the strategically planned weakening of the Rohingya through widespread violence and other various measures, alongside the Myanmar government’s continued implementation of discriminatory and persecutory policies amounts to an ongoing effort with intent to destroy either biologically or physically in whole or in part the Rohingya community.

 

 

 

 

Redress for the Rohingya

The underlying question is whether the Rohingya could be vindicated under international law?

The International Criminal Court (ICC) is established through the Rome Statute of the International Criminal Court that came into force on July 1, 2002 and has the jurisdiction to try cases on the crimes of genocide as provided under Article 6(1) of the Rome Statute.

Although Myanmar is not a State Party to the Rome Statute, Myanmar is a party to the CPPCG and as is obliged to prevent and punish those individuals that are responsible for the crime of genocide, meaning that the perpetrators cannot simply walk away without the risk of punishment.

Article 13(b) and (c) of the Rome Statute allows the ICC to exercise its jurisdiction over States which are non-parties with the requirement of a referral from either the State itself or by a United Nations Security Council Resolution. [16]

With such a situation appearing unlikely to happen anytime soon due to various political reasons, many of the Rohingya refugees that have fled Myanmar will be left in their current situation without any form of justice or vindication.

Therefore it is important for us as a nation to evaluate our current efforts in aiding the Rohingya refugees that have risked their life and limb to cross our borders in efforts to escape the ongoing genocide in Myanmar, which is approaching its final stages.[17]

Malaysia’s Response

Before we proceed with such an evaluation, we would like to take a moment to commend Malaysia’s efforts in accepting many Rohingya and global refugees.

As of the end of October 2016, 150,669 refugees and asylum seekers have been registered with the United Nations High Commissioner for Refugees (UNHCR) in Malaysia. Of this, 54,856 are of Rohingya origin.

The Prime Minister of Malaysia, Dato’ Sri Haji Mohammad Najib bin Tun Haji Abdul Razak’s efforts to urge the international community to step up the pressure to stop the violence against the Rohingya should be commended. [17] Recent discussions regarding a pilot scheme to enable these refugees to work within the country is a move that is greatly welcomed by us.[18]

However, as Malaysia is not a signatory to the Convention Relating to the Status of Refugees 1951 and its 1967 Optional Protocol, refugees and asylum seekers who find themselves in the country lead an uncertain existence on the margins of society, at risk of arrest as “illegal immigrants” as Malaysia makes no distinction between undocumented workers and refugees. Currently, refugees in Malaysia do not have access to legal status and equal protection of the law [19], as there are no legal or administrative frameworks in place to address to refugee situation.[20] As they have no access to legal employment, they tend to work in the informal sector, where they are often subjected to dirty, dangerous and difficult jobs.[21]

Tan Sri Syed Hamid Albar, former foreign minister, has suggested that Malaysia should implement a separate registration system to keep track of Rohingya refugees in the country and has proposed a system of registration that would allow them to work. He explained that Malaysia has not signed the 1951 UN Refugee Convention as it would lead to an influx of refugees. [22]

Datuk Seri Shahidan Kasim, Minister in the Prime Minister’s Department has said that “if we become a signatory, the implication is that we will encourage more foreign workers to come in as refugees and asylum seekers and this will increase the number of illegal immigrants, foreign labourers and refugees… Malaysia will also become a transit for refugees because of our strategic geographical position”. We believe that such claims are unfounded as there are various international legal frameworks to curb this fear.

Regarding the scandal surrounding the UNHCR card registration system, Richard Towle claimed that the UNHCR should not be solely responsible for refugees and asylum seekers in the country. [23] If Malaysia ratified the Convention, a closer working relationship between the Malaysian government and UNHCR could be formed, which could strengthen the monitoring of refugees in Malaysia, reducing fears that Malaysia would be “promoted as a safe haven to illegals[24]”.

Under the Malaysian Immigration Act, severe punishment will be enforced against any person who enters the country without valid documentation. The Malaysian Bar Association passed a resolution rejecting caning of foreign nationals for immigration offences, stating that it was “anachronistic and inconsistent with a compassionate society in a developed nation[25]”. Furthermore, the UN Human Rights Council, to which Malaysia was elected in 2009, has adopted resolutions station that “corporal punishment…can be tantamount to torture[26]”.

There have also been claims that certain groups of refugees in Malaysia have been treated less equally than other groups of refugees.[27] These claims can be resolved if Malaysia seeks to ratify the international conventions mentioned above.
We believe that is important that we start thinking of how we wish to be defined as a country. We could be a country that is a leading example in times of crisis or one that chooses to keep silent in the face of an ongoing one. Whilst we applaud recent efforts by the Malaysian government, more ought to be done.

Therefore, we urge the Malaysian government to sign and ratify the Convention in accordance with its international obligations and role as both the ASEAN chair for 2015 and a serving member of the UNSC for 2015-2016. Corporal punishment against foreigners without valid documentations should also be abolished as soon as possible.
___________________________________
Uniting Law Students, Empowering Future Lawyers, Furthering the Rule of Law.

On behalf of the Union,

Tan Ian
President 2016/17,
Nithya Sarah Zachariah
Human Rights & Activism Executive 2016/17,
Kesatuan Penuntut Undang-Undang Malaysia di UK & Eire (KPUM).The Rohingya are an ethno-religious minority group from the Rakhine region, which is encompassed within the borders of Burma[28]and is adjacent to Bangladesh. They are often said to be the world’s most persecuted minority[29] and are subjected to pervasive human rights violations, including ethnic cleansing, statelessness and possibly genocide.[30] They are a predominantly Muslim group in the majority Buddhist country, and make up around one million of the total 50 million population.[31] To a large extent, Rohingya have been contained within the Rakhine state, one of the poorest states, through successive government policies. For decades, they have been systematically marginalized by officials, security forces and the Rakhine ethnic majority in Rakhine State.[32]
 
The present violence in the Rakhine state is an offshoot of the unsettled question on the origin and identity of the Rohingya Muslims. They are not regarded as one of the country’s 135 official ethnic groups and are denied citizenship under Burma’s 1982 Citizenship Law, which effectively renders them stateless – largely impacting their rights. They have no civil rights; their freedom of movement, their rights to marry and to own property are severely curtailed. [33]


[1] Case No. ICTR-96-4-T, Judgment, para. 512 (Sept. 2, 1998).

[2] Kayishema and Ruzindana

[3] International Convention on the Elimination of All Forms of Racial Discrimination, adopted Dec. 21, 1965, 660 U.N.T.S. 195, art. 1(1).

[4] Persecution of the Rohingya Muslims: Is Genocide Occurring in Myanmar’s Rakhine State? A Legal Analysis

[5] Case No. ICTR- 97-20-T, Judgment and Sentence, ara. 319 (May 15,2003)

[6] Persecution of the Rohingya Muslims: Is Genocide Occurring in Myanmar’s Rakhine State? A Legal Analysis

[7] Case No. ICTR-97-23-S

[8] Case No. ICTY-IT-96-24

[9] Prosecutor v Muhimana, Prosecutor v Karadzic and Mladic

[10] http://www.aljazeera.com/news/2016/…

[11] http://time.com/4576079/burma-myanm…

[12] Internal Unpublished U.N. Report (April 2013)

[13] Human Rights Watch, ‘Ethnic Cleansing of Rohingya Muslims’

[14] www.sparcpk.org/2015/Other-Publicat…

[15] Amnesty International, Southeast Asia: Persecuted Rohingya Refugees from Myanmar Suffer Horrific Abuses at Sea (Oct 21, 2015)

[16] https://www.icc-cpi.int/about/how-t…

[17] https://www.theguardian.com/world/2…

[18] http://www.channelnewsasia.com/news…

[19] http://asylumaccess.org/program/malaysia/

[20] http://www.unhcr.org.my/refugeeMsia.htm

[21] Ibid.

[22] http://www.thestar.com.my/news/nati…

[23] Sumisha Naidu, UNHCR defends registration card system in Malaysia, Channel News Asia, 23 March 2016.

[24] Tasnim Lokman, Battling UNHCR Card Fraud, New Straits Times ,17 March 2016.

[25] Malaysian Bar, Motion for the Abolition of Corporal Punishment of Whipping, 61st Annual General Meeting, agenda item 8(e)(xi), carried unanimously on 9 March 2007.

[26] UN Human Rights Council, Resolution 8/8 on Torture and other cruel, inhuman or degrading treatment or punishment, adopted with a vote on 18 June 2008.

[27] http://www.aljazeera.com/indepth/fe…

[28] The country’s military-led government officially changed the state’s name from ‘Burma’ to ‘Myanmar’ in 1989, but the author continues to use the term ‘Burma’ in solidarity with advocates of human rights and the nation’s pro-democracy movement.

[29] AFP, ‘Myanmar, Bangladesh leaders ‘to discuss Rohingya’ (UNHCR, 2012) http://www.unhcr.org/cgi-
bin/texis/vtx/refdaily?pass=463ef21123&id=4fe952205

[30] Lindsey N. Kingston, Protecting the world’s most persecuted minority: the responsibility to protect and Burma’s Rohingya minority

[31] http://www.aljazeera.com/indepth/fe…

[32] The Rohingya People in Burma: The world’s most persecuted minority
https://www.gfbv.de/fileadmin/redaktion/Reporte_Memoranden/2014/Rohingy-Memorandum_ENGLISH.pdf

[33] Ibid.

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