Identity Crisis of Rohingya in the context of International

Human Rights Law

Submitted By: Md. Shafi Alam Sojib

ID: 2042213037

Course: LLM 5101

Submitted To: Md. Abu Bakar Siddique

Assistant Professor

Department of Law

Bangladesh University of Professionals

Table of Contents

Chapters Headings Page no

1 Introduction 4
2 Historical Background of the Nationality Crisis 5
3 View of International Organizations 5
4 Burma Citizenship Act,1982 7
5 The Universal Declaration of Human Rights 8
6 The 1951 Refugee Convention 11
8 Gambia Vs Myanmar 12
10 Conclusion 14
11 Bibliography 15

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Table of Legislations

1. Burma Citizenship Act,1982

2. The Universal Declaration of Human Rights

3. The 1951 Refugee Convention

Introduction:

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 The Rohingyas are an ethnic minority group of people from Myanmar. Rohingyas
have been living in Myanmar mainly in the Rakhine State from the immemorial time.
The ratio of the Rohingyas among the whole population of Myanmar is only 1%. But the
Myanmar government does not recognize them as a national of Myanmar and identify
them as Bengali. By referring as “Bengalis”, the Myanmar government has able to
distinguished the Rohingyas from others and also mark them as illegal immigrants for the
locals. The Rohingyas are believed to have migrated from India and Bangladesh during
the British period in the subcontinent. The migration of Rohingyas were pretty normal as
Myanmar was part of the India at that time. But after the independence of Myanmar
formerly known as Burma in 4th January of 1948, migration of Rohingyas were treated as
illegal and they were not included as nationals in the constitutions. A new Citizenship
Law was introduced in 1982, where three level of citizenship were introduced. For
acquiring the lowest level of citizenship one had to prove that he had been living in
Myanmar before 1948 with necessary documents. But Rohingyas were never welcomed
in the country and they were treated as illegal immigrants, so, only few number of
Rohingyas came under the documentation after the independence. The citizenship law of
1982 was actually introduced to exclude the Rohingyas. Local people of Myanmar also
possessed the anti-Rohingya mindset. So, the Rohingyas have become alien in their own
country with no one to support them. The United Nations and the international
communities criticizing the Myanmar government for attacking and ejecting the
Rohingyas from their home. Rohingyas are being forced to flee into Bangladesh. These
actions of the Myanmar government have been labeled as “Text Book Example of Ethnic
Cleansing” and also called genocide by the United Nations. Myanmar’s actions have also
been criticized in the security council of the United Nations. But all these initiatives are
going in vain because Myanmar is not taking any of these concerns into consideration
and still trying to extinct the Rohingya race from their soil.

Since August 2017, more than 6,13,000 Rohingya people have fled violence and
persecution in Rakhine State in Myanmar, bringing the total number of Rohingya
refugees in Bangladesh to more than 900,000.1 In Myanmar, the government has blocked

1
https://reliefweb.int/report/bangladesh/bangladesh-humanitarian-situation-report-no10-rohingya-
influx-12-november-2017

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the humanitarian response and placed restrictions on journalists, human rights observers,
local and international NGOs and the UN.

Historical Background of the Rohingya’s Nationality Crisis:

Muslims have lived in the area now known as Myanmar since as early as the 12th
century, according to many historians and Rohingya groups. The Arakan Rohingya
National Organization said: "Rohingyas have been living in Arakan from time
immemorial," referring to the area now known as Rakhine. During the more than 100
years of British rule (1824-1948), there was a significant amount of migration of laborers
to what is now known as Myanmar from today's India and Bangladesh. Because the
British administered Myanmar as a province of India, such migration was considered
internal, according to Human Rights Watch (HRW).2 The migration of laborers was
viewed negatively by the majority of the native population. After independence, the
government viewed the migration that took place during British rule as "illegal, and it is
on this basis that they refuse citizenship to the majority of Rohingya," HRW said in a
report issued in 2000.  This has led many Buddhists to consider the Rohingyas as
Bengali, rejecting the term Rohingya as a recent invention created for political reason.

View of International Organizations:

As per findings of Amnesty International (AI) in its report, since 1978 the Rohingyas
continue to grieve from human rights violations in their home country Myanmar under
the command of military junta, and many have escaped to neighboring country
Bangladesh for shelter. Seemingly, the vast majority of them have been denied Myanmar
citizenship. Besides, because of human rights infringement, an expected 2,00,000
Rohingyas traveled to Bangladesh from 1978 onwards. Another rush of an expected
250,000 Rohingya fled to the nation in 1991.3

2
https://www.aljazeera.com/indepth/features/2017/08/rohingya-muslims-170831065142812.html
3
https://www.amnesty.org/en/documents/asa16/7484/2017/en/

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Bangladesh shares 168 km of border with Myanmar. Beginning with history of conflict,
the first would be in the list would be undertaking of Rohingyas across the border to
Bangladesh since the late 1970s. These persons who have to go across over in the past
continue to provisionally live in refugee camps in Cox Bazaar district of Bangladesh. The
Myanmar ruling classes have shown great unwillingness in accepting these persons
(about 23,000 officially) as their people. They contemplate them as outsiders. On the part
of Rohingyas in Bangladesh, they are informed to be alarmed at the internal situation
across the border and are not happy to go back as they consider they would be ill-treated.
In the most recent effort by Bangladesh, the foreign minister during her recent visit to
Myanmar again raised the Rohingya matter. The Myanmar authorities have asked for an
updated list of these refugees so that they can examine and check if they are their citizens
or not. Such an application has been done many times in the past. Due to this reluctance,
Bangladesh is quite irritated and wants a quick determination, so that bilateral
relationship can move on to the next higher level. The Rohingyas are one way or another
toll on their national resources. Yet Bangladesh cannot just shove them back as it would
be inhumane in the face of the doubts in Myanmar.

Christos Stylianides, the European commissioner for humanitarian aid and crisis
management said in an interview, “The number of people, their needs, their trauma –
[these] are beyond imagination.”4

The General Secretary of the United Nations. Mr. Antonio Guteress said, “Ensuring the
safe, voluntary and dignified return of refugees to Rakhine – in line with international
refugee law – will require the restoration of mutual trust among the communities,” he
said, noting that improved inter-communal relations form a critical part of a sustainable
solution to the crisis.”5

4
https://www.dhakatribune.com/bangladesh/nation/2017/11/01/root-causes-rohingya-crisis-myanmar/
5
https://news.un.org/en/story/2017/09/567402-rohingya-refugee-crisis-human-rights-nightmare-un-
chief-tells-security-council

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After huge criticism, AUNG SAN SUU KYI said, "We have to take care of our citizens.
We have to take care of everybody who is in our country, whether or not they are our
citizens."6

After this statement of Suu Kyi, she was massively criticized by her own party members
and her own country people.

1984 Nobel Peace Prize winner Desmund Tutu said quoting Suu Kyi "My dear sister: If
the political price of your ascension to the highest office in Myanmar is your silence, the
price is surely too steep."

Burma Citizenship Act, 1982:

In this research paper we will mainly focus on the nationality crisis of the
Rohingyas, the main reason behind all these sufferings. It is believed that if the
nationality issue can be solved than the sufferings of Rohingyas will come to end and
they will have all their social, political rights.
First, we will focus on the Burma’s Citizenship Law which was enacted in 1982. In the
section 2 (b,c,d) of the Burma Citizenship Act, 1982 Myanmar has introduced three
theories of citizenship.
These are:

Section 2(b): “Citizen” means a Burma citizen.

Section 2(c): “Associated Citizen” means an associate citizen prescribed by this Law.

Section 2(d): “Naturalized Citizen” means a naturalized citizen prescribed by this Law.

6
https://www.reuters.com/article/us-myanmar-rohingya/suu-kyi-says-myanmar-trying-to-protect-all-
citizens-in-strife-torn-state-idUSKCN1BI0YD

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In the Section 3 of the Burma Citizenship Act, 1982 it is stated that, “Nationals such as
the Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine or Shan and ethnic groups as
have settled in any of the territories included within the State as their permanent home
from a period anterior to 1185 B.E., 1823 A.D. are Burma citizens.” In the section 3, the
Myanmar government has intentionally excluded the Rohingyas, as they did not have any
permanent residence documentation.

In the Section 4 of the Burma Citizenship Act, 1982 it is stated that, “The Council of
State may decide whether any ethnic group is national or not.” But Rohingyas never had
favor from the council and their legitimate demands were rejected by the council again
and again.

So, we are seeing Myanmar has intentionally an act has been enacted to deprive an ethnic
group and make them stateless and deprive them from minimum human rights and civil
rights.

The Universal Declaration of Human Rights:

The Universal Declaration of Human Rights (UDHR) is a milestone document in

the history of human rights. Drafted by representatives with different legal and cultural
backgrounds from all regions of the world, the Declaration was proclaimed by the United
Nations General Assembly in Paris on 10 December 1948 as a common standard of
achievements for all peoples and all nations. It sets out, for the first time, fundamental
human rights to be universally protected and it has been translated into over 500
languages.

There are total 30 Articles in the Universal Declaration of Human Rights protecting the
basic, social and civil rights of a human being. Among all these Most basic and important
articles are mentioned below:

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 Article 1: All human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another in a spirit of
brotherhood.
 
Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status. Furthermore, no
distinction shall be made on the basis of the political, jurisdictional or international status
of the country or territory to which a person belongs, whether it be independent, trust,
non-self-governing or under any other limitation of sovereignty.

Article 3: Everyone has the right to life, liberty and security of person.

Article 4: No one shall be held in slavery or servitude; slavery and the slave trade shall
be prohibited in all their forms.

Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading

treatment or punishment.

Article 6: Everyone has the right to recognition everywhere as a person before the law.

Article 7: All are equal before the law and are entitled without any discrimination to
equal protection of the law. All are entitled to equal protection against any discrimination
in violation of this Declaration and against any incitement to such discrimination.

Article 13:

(1) Everyone has the right to freedom of movement and residence within the borders of
each state.

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(2) Everyone has the right to leave any country, including his own, and to return to his
country.

Article 21:

(1) Everyone has the right to take part in the government of his country, directly or
through freely chosen representatives.

(2) Everyone has the right of equal access to public service in his country.

(3) The will of the people shall be the basis of the authority of government; this will shall
be expressed in periodic and genuine elections which shall be by universal and equal
suffrage and shall be held by secret vote or by equivalent free voting procedures.

Rohingyas does not enjoy any these rights at all. They are treated as alien in their own
country, just because they look different and they speak different language and labeled as
Bengali. By Signing this convention every country has promised to ensure basic rights of
human being even if the person is not their citizen. So, we can say Rohingyas are the
most unfortunate ethnic group in the earth.

Universal Declaration of Human Rights is already protecting the rights of the human in
paper. But the question is who will step forward to protect the Rohingyas in real life. As
we can see there are international politics have been involved, where China and Russia is
supporting Myanmar’s action blindly and also non-Muslim members of ASEAN are also
supporting Myanmar’s Action instead standing beside the Rohingyas. These rights are
not enforceable by any court or by any organization. So, they remain helpless.

The 1951 Refugee Convention:

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 The definition of the term “Refugee” described in the Article 1 of the Refugee
Convention, 1951,

“A. For the purposes of the present Convention, the term “refugee” shall apply to any
person who:

(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June
1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of
14 September 1939 or the Constitution of the International Refugee Organization;
Decisions of non-eligibility taken by the International Refugee Organization during the
period of its activities shall not prevent the status of refugee being accorded to persons
who fulfil the conditions of paragraph 2 of this section;

(2) As a result of events occurring before 1 January 1951 and owing to well-founded fear
of being persecuted for reasons of race, religion, nationality, membership of a particular
social group or political opinion, is outside the country of his nationality and is unable or,
owing to such fear, is unwilling to avail himself of the protection of that country; or who,
not having a nationality and being outside the country of his former habitual residence as
a result of such events, is unable or, owing to such fear, is unwilling to return to it. In the
case of a person who has more than one nationality, the term “the country of his
nationality” shall mean each of the countries of which he is a national, and a person shall
not be deemed to be lacking the protection of the country of his nationality if, without
any valid reason based on well-founded fear, he has not availed himself of the protection
of one of the countries of which he is a national.”
This definition can be described by four key characteristics:

1. A refugee has to be in outside of his or her own country,

2. There has to be a “well-founded fear”.
3. Refugee status can be given on the basis of his race/ethnicity, religion, nationality,
membership in a social group or political opinion.

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 4. Not be reasonably able or expected to return to this country.

Rohingyas are eligible to get refugee status, but yet Bangladesh is denying to provide
this status. Because Bangladesh is fearing if Rohingyas are given refugee status than
repatriation process would be hampered. Getting refugee status is not a permanent
solution for them. Refugee status may provide few more rights and amenities but they
will still remain stateless and without any identity. UNHCR is pressuring
continuously on Bangladesh to provide refugee status.

Gambia Vs Myanmar

On 11 November 2019, The Gambia lodged a 35-page application with the ICJ against
Myanmar, initiating the case on the basis of the erga omnes character of the obligations
enshrined in the Genocide Convention. The application alleged that Myanmar has
committed mass murder, rape and destruction of communities against the Rohingya
group in Rakhine state since about October 2016 and that these actions violate the
Genocide Convention.

The Gambia also submitted a request for the indication of provisional measures of
protection. The ICJ held a public hearing on that request for three days, 10-12 December
2019. A commentator described the hearing as a "remarkable spectacle," noting that The
Gambia's team provided "brutal descriptions" of atrocities, while Aung San Suu Kyi
avoided using the word “Rohingya”—except in a reference to the Arakan Rohingya
Salvation Army.

On 23 January 2020, the ICJ issued an order on The Gambia's request for provisional
measures. The order "indicated" (i.e., issued) provisional measures ordering Myanmar to
prevent genocidal acts against the Rohingya Muslims during the pendency of the case,
and to report regularly on its implementation of the order.

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The Court issued a procedural order on the same date, setting filing deadlines of 23 July
2020 for The Gambia's Memorial, and 25 January 2021 for Myanmar's responsive
Counter-Memorial.

On 18 May 2020, The Court issued an extension for The Gambia's memorial and set a
filing deadline of 23 October 2020. Similarly, an extension was granted to Myanmar set
at 23 July 2021.

Conclusion:

The Rohingya emergency is non-customary in nature which ought to be inclined

to lawfully by the nearby, territorial and universal groups. The UN, ASEAN and other
key players USA, China and Russia must keep aside their own interest, put weight on the

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Myanmar government to make a move to avoid mass atrocities. They can likewise
encourage the military administration to re-establish Rohingya citizenship rights, ethnic
rights, to lift limitations on marriage, development, and training and to locate a
changeless answer for Rohingya exiles that are living in Bangladesh. Composed nearby,
territorial and universal strategic engagement, concentrated on asking the Myanmar
government to stop the commission of dislikes against minorities. Mutual ties between
Bangladesh and Myanmar have been tense, on occasion, incompletely due to the
Rohingya Muslim refugee issue and the drug ‘yaba’ issue. Myanmar shut its frontier
exchange through Teknaf for three months from July to October 2012 when brutal
conflicts broke out between Rohingya Muslims and the Buddhists. Though the political
what's more, monetary connections among the nations of Eastern South Asia have been
strengthened since 1990s, the ties between Myanmar– Bangladesh have frequently been
upset by the Rohingya issue. Statelessness and the character emergency of the Rohingyas
greatly affect the Bangladesh– Myanmar relations, without a doubt, in ways that are
unpropitious for the two nations. Emergency of the Rohingya as a Muslim Minority in
Myanmar. Strong changes must be taken worldwide, territorial and in addition nearby
performing execution to apply pressure on Myanmar's administration through
democratization to guarantee human privileges of Muslim Rohingya and different
minorities.

Bibliography
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 1. Alam, I. Rising Myanmar: US involvement, power rivalry and new hopes for
(Bangladesh. Croatian International Relations Review, 2013) 6-21
2. Kingston, L. N. Protecting the world's most persecuted: the responsibility to
protect and Burma's Rohingya minority. (The International Journal of Human
Rights 2015) 19(8),
3. Uddin, N. State of Stateless People: The Plight of Rohingya Refugees in
Bangladesh. (The Human Right to Citizenship.) Chapter 4.
4. Tonkin, D. Exploring the Issue of Citizenship in Rakhine State ( Chiang Mai
University Press, 2017)
5. http://www.theindependentbd.com/post/123483
6. https://www.icc-cpi.int/libya
7. https://www.aljazeera.com/indepth/features/2017/08/rohingya-muslims-
170831065142812.html
8. https://www.amnesty.org/en/documents/asa16/7484/2017/en/
9. https://reliefweb.int/report/bangladesh/bangladesh-humanitarian-situation-
report-no10-rohingya-influx-12-november-2017.

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